Gujarat High Court
Zavarabhai Harjibhai Nayak & Ors vs State Of Gujarat on 26 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/2919/2008 CAV JUDGMENT
CR.A29192008Rj2.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2919 of 2008
With
CRIMINAL APPEAL NO. 3002 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
==========================================
=============== 1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ========================================== =============== ZAVARABHAI HARJIBHAI NAYAK & ORS.
Versus STATE OF GUJARAT ========================================== =============== Appearance:
CRIMINAL APPEAL NO. 2919 of 2008 MR PRATIK B BAROT, ADVOCATE for the Appellants. CRIMINAL APPEAL NO. 3002 of 2008 MR P.B. GOSWAMI, ADVOCATE for the Appellant. MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent. ========================================== Page 1 of 53 R/CR.A/2919/2008 CAV JUDGMENT =============== CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 26/03/2014 COMMON CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. These two appeals, preferred against the selfsame order of conviction and the consequent sentences, were heard together and we propose to dispose of these two appeals by this common judgment.
2. Criminal Appeal No. 2919 of 2008 is at the instance of two of the convicts, viz. Zavarbhai Harjibhai Nayak and Rameshbhai Zaverbhai Nayak, the accused No. 1 and 2 respectively and other appeal being Criminal Appeal No. 3002 of 2008 is at the instance of Narsibhai Zavarbhai Nayak, the accused No.3 2.1 All the three appellants were held guilty for the offence punishable under sections 302, 504, 341 and 114 of the Indian Penal Code by judgment and order dated 11th September 2008 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Panch Mahals at Godhra in Sessions Case No. 164 of 2007 and sentenced to Page 2 of 53 R/CR.A/2919/2008 CAV JUDGMENT life imprisonment and a fine of Rs.100/-, with a further stipulation that in default of payment of fine further 10 days' imprisonment for the offence punishable under section 302 read with section 114 of the Indian Penal Code. The appellants were also sentenced to rigorous imprisonment of one month for the offence punishable under section 504 of the Indian Penal Code. The appellants were further sentenced to rigorous imprisonment of one month for the offence punishable under section 341 of the Indian Penal Code. The appellants were also sentenced to rigorous imprisonment for six months and a fine of Rs.100/-, with a further stipulation that in default of payment of fine further 10 days' for the offence punishable under section 135 of the Bombay Police Act. The sentences were ordered to run concurrently and the appellants were also given benefit of set off for the period of the days they had undergone in jail.
3. Being dissatisfied, as indicated earlier, these two appeals have been preferred by the three accused persons.
4. There is no dispute that the accused No.1 is the father of the accused No. 2 and 3.
5. The translated version of the charges framed against the appellant is quoted below:
(1) In this case, the deceased Kanubhai Bhangdabhai Nayak Page 3 of 53 R/CR.A/2919/2008 CAV JUDGMENT and Chhatrabhai Bhangdabhai Nayak, both residing at Mol, Vajir Street, Ta. Goghamba had disputes regarding land with you, the accused persons and a suit for that matter was pending in Halol court. As the deceased Kanubhai Nayak and Chhatrabhai Nayak had won in that suit, they ploughed the disputed land on 29/6/07. Therefore, you the accused persons came at the house of the deceased Kanubhai Bhangdabhai in Mol Vajir Street, Ta. Goghamba on 29/6/07 at about 19-15 hours in the evening and spoke abusive language for mother and sister and thereafter went away and again after sometime you, the accused persons being united came to the house of the complainant and with an intention to kill Kanubhai Bhangdabhai, the husband of the complainant took him to your house by catching his hands and dragging him and you the accused Rameshbhai Javrabhai came hurriedly taking a scythe from your house and gave two blows with the scythe in the neck of the husband of the complainant Kanubhai Bhangdabhai Nayak and therefore as half of the neck of the deceased Kanubhai Bhangdabhai Nayak was cut, he died. Thus, you the accused persons using abusive language for mother and sister, helping each other to commit the crime and causing death of Kanubhai Bhangdabhai Nayak, killing him, committed a punishable offence u/s 302, 504 and 114 of Indian Penal Code within the jurisdiction of this court.
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(2) Though the notification of prohibition of keeping arms of Additional District Magistrate was in force on above date, time and place, you the accused persons being equipped with weapons in your hands, violating the notification of prohibition of arms, committed an offence u/s 135 of B. P. Act.
6. The case made out by the prosecution may be summed up thus:-
6.1 One Kaliben, wife of deceased Kanubhai Bhangdabhai Nayak, residing at- Mol Vajir Street, Tal. Gogamba, lodged a complaint before Rajgadh Police Station on 30th June 2007 stating that she was residing at the said village with her husband and children. She was illiterate, and she has two sons and six daughters. Her husband has two other brothers wherein her Jeth (husband's elder brother) Chhatrabhai was residing in village Dudhapura in his in-law's house. Her husband and her 'diyar' Shanabhai were residing at village Mol in separate houses.
Zavarabhai Hurjibhai Nayak was living in the land situated near their house which was their land and there is her share in that land. Before about last five years, Zavarabhai Hurjibhai made a hut in this land by quarreling with the family of the complainant and saying that the land is of his uncle Manji Garakiya. He and his wife and children were living in that hut. He started cultivating this disputed land. Zavara Hurji at first filed the case in Godhara court for getting right of this land and she received summons from Godhara court. As this was Page 5 of 53 R/CR.A/2919/2008 CAV JUDGMENT their land, her 'jeth' Chhatrabhai Bhangadabhai Nayak filed a case in the Devgadh Bariya court for getting right. As the court was shifted to Halol from Devgadh Bariya, the case of this land was conducted in Halol court and they had won this case. Therefore, her husband Kanubhai and 'diyar' Shanabhai went to Halol court the previous day and they met their learned Advocate and the Advocate informed that the order was passed in their favour in respect of the land in question, and he could cultivate this land now. Upon getting such information, they came back. As order was passed against Zavara Hurji Nayak in respect of this land, he and his sons went to Godhara court to file case. As the case of the disputed land was disposed in their favour, her husband and 'diyar' Shanabhai came back from the court and connected plough and wood and tilled this land. At about seven o'clock in the evening, this Zavara Hurji Nayak and his son Rameshbhai came to their house and when they saw that the land near his house tilled, he spoke abusive words and questioned as to why he had tilled this land. They came to her house and started questioning her husband as to why he had tilled this land. On saying so, her husband told him that he has won the case of this land and the Advocate told him that he could now cultivate this land and therefore, he along with his brothers had tilled the land and this is their land and they have cultivated it. Thereupon, they went back to their house and thereafter, Zavara Hurji and his two sons - Rameshbhai and Narsinh came to her home and by telling as to why he tilled their land, caught hold of her husband's hand and took him Page 6 of 53 R/CR.A/2919/2008 CAV JUDGMENT to their home by dragging. Ramesh Zavara brought a scythe from his house and gave two blows to her husband at the neck part. As her husband's throat became half-cut, he died.
6.2 In view of the above facts, she lodged her complaint for taking action against Zavara Hurji and his two sons -Rameshbhai and Narsinh in Rajgadh Police Station and the offence has been registered.
6.3 The Investigating Officer took over the charge of the case, the inquest panchanama of the dead-body of the deceased and the Panchanama of scene of offence were drawn. Statements of the concerned witnesses were taken and the post-mortem of the dead- body of the deceased was performed. The muddamal articles were seized and forwarded to the Forensic Science Laboratory. Thereafter, as there were sufficient evidence against the accused persons, a charge sheet for offences punishable under Sections -302, 504, 341, 114 of the Indian Penal Code and 135 of Bombay Police Act was filed in the court of Judicial Magistrate First Class, Halol, which was registered as Criminal Case No.2234/07. As the case was exclusively triable by Court of Sessions, the learned Magistrate, after completing the formalities, committed the case to the Court of Sessions , Panchmahals.
6.4 The accused denied the charges levelled against them, pleaded Page 7 of 53 R/CR.A/2919/2008 CAV JUDGMENT 'not guilty' and claimed to be tried. Therefore, the trial started. 6.5 At the time of hearing, the prosecution has examined the following witnesses:
Sl. Name PW Exh.
No No. No.
1 Ramlabhai Daliyabhai Rathva (panch witness, 1 14
hostile)
2 Bhariyabhai Dahariyabhai Rathva (punch witness, 2 18
hostile)
3 Jitsinh Mohanbhai Bariya (panch witness, hostile) 3 19
4 Vikramsinh Fatesinh Bamaniya (panch witness, 4 22
hostile)
5 Kaliben Kanubhai Nayak, the complainant 5 26
6 Sanabhai Bhangadabhai Nayak (brother of the 6 28
deceased).
7 Surtiben Shanabhai Nayak (brother's wife of the 7 29
deceased)
8 Chhatrasinh Bhangadabhai Nayak 8 30
9 Niruben Shanabhai Nayak 9 31
10 Salambhai Chhaganbhai Nayak 10 32
11 Mohanbhai Maliyabhai Nayak 11 33
12 Dr. Parasram Magilal Patel 12 34
13 Kalabhai Sagabhai Bhabhor, Police Station Officer 13 36
14 Jasvantsinh Becharsinh Jadav, the policeman who 14 37
registered the complaint
15 Arvindbhai Becharbhai Ansari, Investigating Officer 15 42
6.6 The prosecution also produced the following pieces of
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R/CR.A/2919/2008 CAV JUDGMENT
documentary evidence in support of the prosecution case:
Sl. Details of documents Exh No. No. 1 The Complainant 27 2 Schedule prepared on the basis of the complaint 38 3 Panchanama of scene of offence 15 4 Yadi for inquest by I.O. 10 5 Inquest Panchnama 11 6 Inquest Form. 12 7 Panchnama of seizure of muddamal after arresting the 21 accused persons. 8 Panchanama of seizure of the clothes from dead-body . 13 9 Yadi written to the Medical Officer. 39 10 P.M.Report. 35 11 Yadi to prepare map of the scene of offence to the Circle 43 Inspector by I.O. 12 Copy of the receipt handing over the dead-body . 40 13 Dispatch Entry. 44 14 Letter received for analysis of muddamal. 45 15 Letter written to FSL Vadodara. 46 16 Analysis Report. 47 17 Report of serological examination 48 18 Notification 49 20 Extracts of Village form No.6 and 7/12. 51,52
6.7 The accused persons did not adduce any evidence of their own. However, after the oral and documentary evidence were taken, the statement of the accused under section 313 of the Criminal Procedure Code was recorded by the learned Sessions Judge, when the accused denied the evidence produced by the prosecution by describing those Page 9 of 53 R/CR.A/2919/2008 CAV JUDGMENT as false, and, according to them, a false complaint had been filed against them due to animosity between the parties over the land in question and that they have not committed any offense. 6.8 As indicated earlier, the learned Sessions Judge, on consideration of the materials on record, came to the conclusion that the prosecution has proved the case of murder and convicted all the accused person for the offences punishable under sections 302, 504, 341 and 114 of the Indian Penal Code and sentenced them as stated hereinabove.
7. Mr. Barot, the learned advocate appearing on behalf of the appellants-accused in Criminal Appeal No. 2919 of 2008 and Mr. Goswami, the learned advocate appearing on behalf of the appellant in Criminal Appeal No. 3002 of 2008 strenuously contended before us that the learned Sessions Judge committed substantial error in convicting the appellants by taking into consideration the evidence adduced by the widow, brother, brother's wife and niece of the deceased although the evidence adduced by them were conflicting in nature. According to the learned counsel for the appellants, the learned Sessions Judge was unnecessarily influenced by the fact that there was a litigation over the land in which the appellants had lost and on that basis, passed the order of conviction. 7.1 Mr. Goswami, the learned advocate appearing for the appellant Page 10 of 53 R/CR.A/2919/2008 CAV JUDGMENT in Criminal Appeal No. 3002 of 2008 further submitted that so far his client is concerned, there was no justification of passing the order of conviction notwithstanding the fact that there was no evidence of actual participation of his client in the murder of the deceased. According to Mr. Goswami, there is no cogent evidence to indicate that his client used any of the weapons alleged by the prosecution. According to Mr. Goswami, at least his client should be absolved of the charges levelled against him.
8. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the prosecution, has, on the other hand, supported the case of the prosecution and has contended that having regard to the fact that there were three eyewitnesses of the incident, the learned Sessions Judge rightly passed the order of conviction and sentence. Mr. Rawal further contended that so far as the appellant of Criminal Appeal No. 3002 of 2008 is concerned, it has been well established that the said appellant also dragged the deceased along with his father and other brother, and thus, his actual participation is established. He, therefore, prays for dismissal of the appeals.
9. The only question, therefore, that falls for determination in these appeals is whether on the basis of the material on record, the learned Sessions Judge was justified in holding the appellants guilty of the offence punishable under section 302, 504, and 341 of the Indian Penal Code.
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10. Before we proceed to consider the submissions, it will be profitable to consider the oral evidence adduced by the prosecution witnesses.
11. Ramlabhai Daliyabhai Rathva is the PW. No.1. In his examination-in-chief, he has stated that on 30th June 2007, when he was at his house, police persons came at his house and took him with them. When he went with the police, only he was present there. He saw there a young person in dead condition. That place was the farm of Zavra. That land was bumpy. Going to the farm, he did not see anything. He has not seen the police seizing anything from the place of incident or closing it by affixing a slip. The house of Salam Chhagan was situated in the West. The farm of Keshar Bogad is situated in the North. The farms are situated far away in the South. He did not know the names of the owners of the farms. He has identified his thumb impression in the panchnama of the place of offence. He did not know as to who else was there as second pancha with him.
11.1 He was declared hostile, and upon getting permission from the Court, he was cross-examined by the prosecution. 11.2 In his cross-examination by the prosecution, he has admitted that trees of Zezi were situated at the place of offence and a pile of Page 12 of 53 R/CR.A/2919/2008 CAV JUDGMENT firewoods was there. Moreover, blood stained earth and sample earth were seized from the place and a detailed panchnama was drawn for the same which is included at Exh-15. He was shown muddamal article No.2 and 3 and he has identified it. He has also identified his thumb impression as well as the same of the other pancha and he has proved the same.
11.3 In his cross-examination by the learned advocate appearing on behalf of the accused, he has stated that he was alone from the time when the police persons came to call him till he returned to his house. Five to six police persons came to call him at his house and took him with them. He has stated that his thumb impression in the panchnama was not taken at the house of the accused but it was taken by coming at his house and he has put his thumb impression and except this he did not know any other fact of the panchnama. The police did not draw any panchnama in his presence. When he made this thumb impression, no other person was present. The police did not seize any article in his presence. The police had taken his thumb impression on plain papers. He did not know the reason for taking his thumb impressions and what they had to do with it.
12. The Prosecution Witness No. 2 is Bhariyabhai Dahariyabhai Rathva. In his examination-in-chief by the prosecution, he has stated that on 30th June 2007, when he was at his home in the morning, the police came at that time and asked to give thumb impression on Page 13 of 53 R/CR.A/2919/2008 CAV JUDGMENT some papers, and therefore, he gave the thumb impression as pancha No.2. He has stated that the police did not size blood stained earth or sample earth from the place of offence in his presence. He has identified his thumb impression as pancha No.2. 12.1 This witness was also declared hostile, and after getting permission from the court, he was cross-examined by the prosecution.
12.2 In his cross-examination, he has denied that the police took him in front of the house of Kaliben where firewoods were there and an electricity pole was there. He has also denied that the bloodstained earth and sample earth were seized or any muddamal was seized in his presence. He has identified his thumb impressions on the panchanam. He has denied that he was giving false deposition to save the accused.
12.3 In his cross-examination by the learned advocate for the accused, he has stated that the police called him to push their vehicle and his thumb impression was taken there.
13. PW No.3, Jeetsinh Mohanbhai Bariya has stated in his examination-in-chief that his signature is there on panchanama, exh.13 and at that time, Vikramsinh Fatesinh Bamaniya of his village was there as the second pancha and he had put his signature in his Page 14 of 53 R/CR.A/2919/2008 CAV JUDGMENT presence. Thereafter, he went to police station and it was 7-30 hours of evening and no one else was present there on the same day. The police did not draw any panchnama of physical condition of the accused and the police had not seized the scythe of muddamal article No.6 from the accused Rameshbhai Zavrabhai in his presence. He has identified his signature as pancha No.1. The muddamal was sent in the FSL and when it was seized, it was seized with the slip bearing their signature and that slip bears his signature as well as the signature of the other pancha. He has proved the panchnama and the signature of the second pancha who signed in his presence. 13.1 This witness was also declared as hostile and the Court granted permission to the prosecution to cross-examine him. In his cross- examination, he has denied that the panchnama of physical condition of the accused persons was drawn in their presence by the police and muddamal article No.6 was seized from the accused Rameshbhai Zavrabhai and a detailed panchnama was drawn for the same. He has identified his signature as pancha No.1 in Exh-21. The pancha No.2 signed in his presence. He has denied that as he knew the accused persons, he was giving false deposition to save the accused persons.
14. Vikramsinh Fatesinh Bamaniya, PW. No.4, in his examination-in- chief, upon showing panchnama about seizing clothes from the dead- body by the police, has identified his signature thereon and has stated that the pancha No.1 also signed in his presence. He has Page 15 of 53 R/CR.A/2919/2008 CAV JUDGMENT further stated that on that day, he went to Rajgadh police station at 7-30 hours in evening. At that time, on one else was present except the police and the panchas. The police did not draw the panchnama of the physical condition of the accused persons in his presence nor was the muddamal article No.6 scythe seized. A detailed panchnama for the same was drawn. His signature was taken thereon and he has identified his signature.
14.1 This witness was also declared hostile and was granted permission for cross-examination by the prosecution. In his cross- examination, he has denied that the police have drawn the panchnama of Exh-21 in his presence or the panchnama of physical condition of the accused persons or the accused No.2 produced muddamal article No.6 and a detailed panchnama was drawn in that regard and his signature was taken therein. He has denied that he was giving a false deposition to save the accused persons.
15. The complainant, Kaliben Kanubhai Nayak, who is the wife of the deceased, has been examined as PW. No.5. In her examination-in- chief, she has stated that she was residing at Mol with her family and earned her livelihood by doing household chores. Kanubhai who has died in this case was her husband. She has 10 children. Out of them six daughters are alive. Two daughters are spinsters and her two sons are bachelors. The children who are unmarried were living with her. They had agricultural land. Her husband had total three brothers. Her Page 16 of 53 R/CR.A/2919/2008 CAV JUDGMENT jeth (elder brother of husband) Kacharabhai resides at his in-law's house in Dudhapura village. Her diyar (younger brother of husband) Shanabhai and her husband were living separately in Mol village. Their agricultural land is situated near their house. She did not know Javrabhai Arjunbhai and also did not know as to whether his land was situated near their land. She thereafter stated Javra used to come and till their land and he had built a hut. She has identified the accused. She has also identified accused Rameshbhai and Narsinhbhai, sons of Javrabhai. Javrabhai and his sons used to come and till their land. A case was also pending in Bariya court regarding this land. That case also was put up before Halol court for trial. Her husband had won the case which was pending in Halol court and therefore, they went to plough the field.
15.1 This incident took place about 9 months ago at about 6-00 hours. She was present at the house at the time of the incident. Her diyar had gone at his in-law's house. She, her husband, her younger children were present at the house at the time of the incident. At that time, the accused persons came to her house in a group and started telling to her husband as to why he ploughed this land. At that time her husband said that the advocate had told him that he has won in the court and that's why he ploughed.
15.2 All these three accused persons again came after some time. Her husband was sleeping on bed. Javro, Ramesh, Narsinh, Maslo and Page 17 of 53 R/CR.A/2919/2008 CAV JUDGMENT Ravji dragged him and took him little far away from the compound of her house by pulling. At that time Ramesh went to take a scythe and Ramesh had given his paliya (a weapon) to his father. Javra gave a blow to her husband at the area of throat and the throat was cut. Ramesh gave a blow with small paliya on his throat and Narsinh was beating her husband with an iron stick and remaining were beating her husband with stones. Ravji and Maslo were beating with stones. Her husband died. They were threatening and saying that they would also kill her. She shouted but no one came as there was nobody around. Thereafter her diyar arrived and subsequently, the other persons of the street came there. She then went to police station to inform and filed a complaint. She has proved the complaint and the muddamal scythe, muddamal article No.6. With this scythe, Javra had given a blow to her husband at back side on the part of throat. 15.3 In her cross-examination by the learned advocate for the accused, she has stated that the incident occurred at 6-00 hours of evening but it did not get dark and it was visible. It was season of monsoon at the time of incident and it was raining at that time. Her family members were sleeping. Three persons came at the time of incident. They came while speaking continuously outside the house. She and her husband did not come outside and when they came out- side of her house, her husband said that they had won the case and therefore they abused and went away. Thereafter, they came back after half an hour. At that time Javro, Ramesh, Narsinh, Maslo and Page 18 of 53 R/CR.A/2919/2008 CAV JUDGMENT Ravji came. Her husband was in the house at that time. When they came for the second time, they had weapons. At first, Javro came in the house and thereafter all carried and took away her husband. They took away her husband by dragging him and they had not gone back to take weapons. They took her husband 20-25 steps away. At that time, she was making rotla (thick chappatis) in the house. She has denied that that it was raining at that time or it was dark. She has also denied that there was less visibility.
15.4 Javra assaulted her husband with the paliya of muddamal article No.6. When they took away her husband by dragging him, her husband shouted. She was making rotla (chappatis) in the house at that time. Thereafter, she went out side. It is not true that when she went out side, dead-body of her husband was lying on the ground. 15.5 She told the police that Javra gave blow with paliya. In the complaint given by her, she had dictated that Javra gave blow with paliya. Due to the blow of scythe, head of her husband got separated and the headless body was lying on road. Ramesh threatened her not to come there and she had dictated such fact before the police and they also said that they would kill her and she had dictated this fact before the police. She also dictated before the police that Ravji and Masla assaulted her husband. She dictated before the police as to the weapon by which her husband was assaulted. Paliyu may be smaller than muddamal article No.6. She dictated before the police that Page 19 of 53 R/CR.A/2919/2008 CAV JUDGMENT Ramesh assaulted her husband with paliya and she also dictated the fact before the police that other persons came with iron stick and she also dictated the fact of beating with stones.
15.6 Her two younger sons were with her. There are two-four huts where she live and some persons live there. Her hut is situated at a high place on a hilly area and the hut of accused persons was on slope. Their hut was in the disputed farm and a suit was pending between them and the accused persons regarding the farm and the hut made by them. On the same day, when the incident took place, Advocate told that they had won the case. She has denied that Javra did not cause any injury to her husband with any weapon. She has also denied that Ramesh also did not assault her husband with paliya. 15.7 After her husband was beheaded, Ramesh gave a blow of paliya (to him) and the remaining persons gave blows with iron pipe on the part of head and leg. Her diyar came to the place of incident after one hour. She sat alone for one hour in the house. After her diyar came, she came out. She and her derani (wife of husband's younger brother), Surti, both went to police station. They went there in a police vehicle. She had called the police. The police was informed through a phone call. That phone call was made by her diyar. They spent the night by sitting. They went to the police at 1-00 hour in the night. When they went to the police at 1-00 hour in the night, her diyar did not come with them. The police came to their house at 1-00 Page 20 of 53 R/CR.A/2919/2008 CAV JUDGMENT hour in the night. Police persons and Fauzdar were there among the police. When the police came, she showed the place to the police where he was killed and at that time her husband was lying at that place only. When the police came, she, her derani, and her children were there at the place and except that no one else was there. The police took the dead-body at about 10-00 hours in the morning. 15.8 The house of her diyar is situated near to her house. As she is illiterate, she could not say as to how far it is. No one had gone to call her diyar. There is no house between her house and the house of her diyar. She had shouted loudly at the time of incident but no one had come. Ravji and Maslo did not come to her house when the accused persons had come to her house for the first time. Shanabhai Bhurabhai is her diyar and Surti is her derani. Chhatrabhai Bhagdabhai is her jeth and Niru Shana is her niece. Kanubhai is her son and he goes to Vadodara for labour work. Amratben Amarsing is wife of her son and they reside at Vadodara. She has denied that the accused persons did not kill her husband by beating him. She has also denied that because of the dispute regarding land, this false case has been filed against the accused persons.
16. PW. No. 6 is one Shanabhai Bhagdabhai Nayak, the younger brother of the deceased. In his examination-in-chief, he has stated that they are three brothers. The name of one brother is Chhatrasinh, the name of second brother is Kanubhai and Kanubhai is his elder Page 21 of 53 R/CR.A/2919/2008 CAV JUDGMENT brother. The incident took place before eight-nine months. Survey number of his land is 263 and it is known as bethawala. This land is situated in Mol village. Earlier the case of this land was pending in Bariya court and thereafter it was pending in Halol court. The judgment of this case was given in their favour. Zavra Harji, Ramesh Javra and Narsinh Javra are respondents in this case. Before this incident he and his brother had gone to Halol court and that judgment was passed in their favour and they were tilling this land earlier. As they had won the case, they were asked to till the land. Thereafter, both the brothers returned to home from the court. After coming from Halol, they took food at their respective house and then they went to till the land taking a plough. After tilling the land they came to home for taking bath at 5-00 o'clock. After taking bath, he went to the house of his brother-in-law (brother of wife) Kesharmaliya. The name of his wife is Sursiben Shanabhai. The house of his brother-in-law was situated equal to the distance from the gate of the court. The name of the son of his brother-in-law is Arvind. As he had stomachache, he was to be taken to hospital and therefore he had gone there. His wife was also with him and they both went to the house of his brother-in- law. At that time Javra Harji, Ramesh Javra and Narsiya Javra came at the house of Kanu Bhagda. Thereafter, they were abusing and they were listening. On listening abusive words, they came to their house from the house of his brother-in-law. Three persons dragged and took away Kanu Bhagda and they took him behind the courtyard situated behind his house. At that time Javra Harji gave a blow of scythe on Page 22 of 53 R/CR.A/2919/2008 CAV JUDGMENT the back part of the throat of Kanu Bhagda and the throat was almost cut. Thereafter, Ramesh Javra gave blows in head and on back with paliya and Narsinh Narsaiya gave him blow on leg with an iron pipe. Thereafter, these persons chased him. His brother Kanu Bhagda was taken to Goghamba hospital. Kaliben is wife of Kanubhagda and she is his bhabhi (brother's wife). As the accused persons chased him, he ran away and went to Dudhapura at the house of his elder brother Chhatrasinh. He went there alone. His bhabhi and Surtiben went to file a complaint. They both gave the complaint. The police recorded his statement. He has identified the weapon, the scythe, muddamal article No.6, which was in the hands of Javra. He identified scythe with which Kanu Bhagda was injured at the back part of body on neck i.e. on the back part of throat. He has also identified the accused persons.
16.1 In the cross-examination by the learned advocate for the accused, he has stated that it would take about one hour for going to Dudhapura on foot from Mol village. He came to Mol village from Dudhapura on the next day morning between eight to nine hours. When he came to Mol village from Dudhapura in the morning, his bhabhi, his wife Surti and Kanu were not at Mol village. Their farm is of 6 bigha. While coming at the house of his brother-in-law and at the house of Javra, it may take 15 to 20 minutes. The house of Javra was situated in the disputed farm and his hut was there. It is not true that it had become dark when he came to the house of Kanu Bhagda from Page 23 of 53 R/CR.A/2919/2008 CAV JUDGMENT the house of his brother-in-law. He and his wife both alone came to the house of Kanu Bhagda but his brother-in-law did not come. When they reached there, his bhabhi was in the house and she was in the house of Kanubhai. It might be 7 o'clock at that time. He has admitted that he had dictated such a fact in his statement before the police that around three persons dragged and took away Kanu Bhagda and they took him behind the courtyard behind his house. At that time Javra Harji gave a blow to Kanu Bhagda in the back part on throat with the scythe and the throat was almost cut. Thereafter, Ramesh Javra gave blows in head and on back with paliya and Narsinh Narsaiya gave him blows on leg with an iron pipe. Thereafter, these persons chased him. He had also dictated such a fact in his statement before the police that as these persons chased him, he ran away and went to the house of his elder brother Chhatrasinh at Dudhapura. He went there alone. He has denied that he has not dictated in his statement before the police that after the incident had already occurred, he came there and afterwards he came to know about the incident. He has also denied that he has not dictated in his statement before the police that "after this, we both husband and wife went there and the dead-body of his brother was lying there up side down." He has stated that it did not so happen that he sat at the place of offence and sent his bhabhi to the police station to file a complaint. When he reached the place of incident, other two-three persons gathered there in the night. He had gone to the house of his brother-in-law and when he left from there, he told him that as his Page 24 of 53 R/CR.A/2919/2008 CAV JUDGMENT brother has shouted, he has to go. He has stated that it did not happen that after one hour of the incident he reached there and his bhabhi was not there at that time. The distance between his house and the house of Kanu Bhagda is equal to the distance from the gate of this side to the box where he was giving his deposition. He has children and they were not in the village at that time. They had gone for labour work. Apart from the accused, his brother Kanu Bhagda, Mahesh Javra and Ravji Javra were there. The accused persons live with their family.
16.2 Javra gave blow with scythe and Ramesh had brought that. When he went there, the accused persons had weapons. Pariyu may be smaller than a scythe. He was shown muddamal article No.6 and he has stated that it was not a pariyu but a scythe. He has denied that the police did not show him a small pariyu. He drew attention of the police that he was not shown the pariya and the Police said that everything has been written. The police also did not show him iron pipe. His brother Chhatro did not come with him at Mol village on the next day of the incident. Throat of his brother Kanu was hanging and it was not separated in two parts. He has denied that he was not present at the time of incident. He has also denied that in his presence his brother was not injured at any part of his body by Javra with scythe, by Ramesh with pariya and by Narsinh with an iron pipe and the accused persons of this case did not cause any injury to his brother at any time. He has also denied that he was not present at Page 25 of 53 R/CR.A/2919/2008 CAV JUDGMENT the time of the incident and though he did not know about the incident, he gave a false deposition at the instance of his bhabhi to help her. He has also denied that when he was at Mol village, the police came. He has also denied that as there was a dispute with the accused persons of this case regarding land, this false case has been filed against them.
17. Surtiben Shanabhai Nayak is PW. No.7. In her examination-in- chief, she has stated that she is a resident of Mol village and stays there with her family. Houses of the accused persons are situated near her house. Behind the house of Javra, the house of her brother Kesharbhai Madiya was located. Her husband has two brothers. One is Chhata and other is Kanu Bhagda. Her jeth Chhatrabhai resides at his in-law's house in Dudhapura. The house of Kanubhai was situated in some low lying area near to their house. Agricultural land of her father-in-law was there which was cultivated by her husband and her jeth. They had a dispute with the accused persons of this case regarding this farm and its case was pending in Bariya court and from there it came up in Halol. Her husband and jeth won the case and therefore they had gone to Goghamba at the place of the advocate to take documents of the case and returned to home in afternoon taking documents. They came home, had food, took rest and then joined plough with yoke at about two hours in the afternoon and the disputed land had been ploughed and the plough was untied at 5-00 hours. Approximately nine months have been passed since the Page 26 of 53 R/CR.A/2919/2008 CAV JUDGMENT occurrence of this incident. After untying the plough, her jeth Kanubhai went to his house and she and her husband went to the house of her brother Keshar Maliya as his son had stomachache and he was to be taken to hospital. These accused persons came abusing and therefore her brother came out of the house to see. The accused persons asked as to who has ploughed their land and saying so they were abusing. Therefore, she came out of the house of her brother to check and at that time her jeth Kanubhai and his wife were alone. The accused came running and went towards the house and that time they felt that these people would quarrel and therefore, she and her husband went to their house from the house of her brother and before they reached to their house, the accused dragged her jeth and brought him out of the house. The accused persons brought her jeth near their house and therefore she and her husband shouted not to beat him. In that much time, the accused Javrabhai and his sons caught her jeth and the accused Ramesh went to his house, brought a scythe and gave to Javrabhai and though they continued shouting, Javrabhai gave blow of the scythe to her jeth Kanubhai at back part of his throat. Ramesh gave blow with the pariya in his hand at the back part of Kanubhai. An iron stick was there in the hands of the accused Narsinh and that was hit on the entire body. Therefore, she and her husband shouted and called persons of the street but no one came out. The accused persons abused her and her husband and therefore they got frightened. The accused persons went away from there. As they were afraid, they went to Dudhapura to call her jeth Page 27 of 53 R/CR.A/2919/2008 CAV JUDGMENT Chhatrabhai. A police complaint was filed regarding this incident and the police recorded her statement for the investigation. She has identified the accused persons in the court.
17.1 In the cross-examination, this witness has stated that she went to Dudhapura with her husband at the house of her jeth. Thereafter, they both returned in half an hour. Her jeth met her at Dudhapura. Her jeth also came with them at Mol village. Jethani did not come with them. They came to Mol village at about 12-00 hours in the night. No persons gathered in the night. Police came at 10-00 hours. She did not know as to who had gone to call the police. When they returned to Mol village in the night, police was present there. They went to the house of her brother at 5-00 hours in the evening. Her bhabhi and her mother resides at the house of her brother. Her mother is blind. On listening abusive words, they immediately left from the house of her brother. They did not bring her brother with them and did not ask her brother to come with them. They came nearer and the accused persons took away her jeth by pulling him and they saw that. At that time her jethani was taking bath. Thereafter, she has stated that her jethani was with her jeth. She had dictated in her police statement that she shouted not to beat but within that time, Javra and his son caught him and the accused Ramesh went in the house, brought a scythe and gave it to the accused Javra. Javra gave a blow to her jeth at the part of his throat and Ramesh gave a blow with the paliya in his hand at the back part of her jeth Kanubhai. The accused Narsinh Page 28 of 53 R/CR.A/2919/2008 CAV JUDGMENT had an iron stick in his hands. That was hit on the entire body. She and her husband shouted and called persons of the street but no person of the street had come out. She had dictated such a fact in her statement before the police that the accused persons abused her and her husband and therefore they got frightened. The accused persons went away from there and therefore getting frightened, they went to Dudhapura to call her jeth. She has denied that the police did not record her statement. She has also denied that she has not dictated the fact before the police that she and her husband had gone to the house of her brother. She has also denied that she and her husband have not dictated such a fact in their police statement that they eye- witnessed this incident.
17.2 They went to Ghoghmba with her jethani. They went to police station. Her husband stayed with the dead-body and he stayed at Mol village. Her jethani gave complaint by going to the police station and when they went to give complaint from Mol village, police came with them. She has denied that first the complaint was given and then police came. She has also stated that she did not know as to who called the police. The police recorded their statements and prepared papers when they returned to Mol village from Dhudhapura village. Thereafter, they went to Goghamba police station. At that time, except her jethani, no one else came with her. They both alone went to file the complaint and her husband and her jeth stayed with the dead-body at Mol village. She has admitted that paliya would be Page 29 of 53 R/CR.A/2919/2008 CAV JUDGMENT smaller than a scythe. They informed all the facts to the police regarding scythe, paliya and stick of iron. She has denied that her husband went to Dudhapura in the night and returned in the morning. She has also denied that she and her jethani went to Goghamba and nobody was at home. She has denied that Javra, Ramesh, Narsiyabhai did not cause any injury to her jeth. She has also denied that no quarrel had taken place between the accused persons and her jeth. She has denied that as there is a dispute of their land, a false case has been filed. She has denied that she did not eye-witness any incident and is giving false deposition.
17.3 Brother of the deceased, Chhatrasinh Bhagdabhai Nayak is PW. No. 8. In his examination-in-chief, he has stated that Kanubhai was his brother. Before twenty years from the date of giving deposition, the land situated near their house was purchased from Majibhai. Suits were pending in the court for this land between them since last five years. They won in that suit. After winning, they continued tilling the farm. On 29th June 2007, when he was at his house, he came to know from other that in the last morning Javra Harji Nayak had come to know that the opponent of this case has won the disputed case. Therefore, a boy named Ramesh went to Godhra court. So, in the afternoon, his brother Kanu and Shan ploughed the disputed land. Ramesh, the son of Javra returned from Godhra court at about 7-00 hours in the evening. He came to know from others that Javrabhai and his sons had beaten Kanubhai with kicks and fists by dragging Page 30 of 53 R/CR.A/2919/2008 CAV JUDGMENT him from his house. Afterwards he came to know that Ramesh had given a blow with scythe and half of the throat was cut and his dead- body was lying near the house. Police took the dead-body of Kanu to Goghanba hospital after conducting due procedure. Thereafter, he obtained copy of the judgment of the disputed land. He came near the dead-body of his brother which was kept in government hospital and he saw that his half throat was cut. Thereafter, government doctor conducted postmortem of the dead-body and gave it to them for its final rituals. The complaint of this incident was given by Kali, the wife of the deceased and on the basis of that complaint, the police recorded his statement.
17.4 In his cross-examination, he has stated that he is a resident of Dudhapura village and to travel from Mol to Dudhapura on foot, it might take two-three hours because the distance between them is about ten to twelve miles. At about 12-00 hours in the night when he was at Dudhapura village, Shanabhai Bhagda came to call him. On receiving the news, they left for Mol village in the night and they reached there at about 5-00 hours in the morning. When they reached Mol village, police persons were sitting there and they were preparing papers. He has denied that he went to Halol to get a copy of this judgment from his advocate and when he came to Godhra government hospital, he saw that the dead-body was lying in blood smeared condition and half of its throat was cut. If the police have written this fact in his statement, it is true. It did not happen that he Page 31 of 53 R/CR.A/2919/2008 CAV JUDGMENT went to Godhra government hospital from Dudhapura village. It did not happen that he was in Dudhapura village and came to know that the dead-body will be brought to Goghamba government hospital on completion of the police procedure. It also did not happen that on knowing this fact, he went to Halol to get the document. Surti, Shana and a boy came to his house at Dudhapura in the night. Surti came with them to Mol from Dudhapura. It did not happen that his brother Shana sat near the dead-body and Kali and Surti went to Goghamba and he was in Dudhapura at that time. Before they dictated their statement, they have not gone to Halol to meet the advocate. The police asked them as to how did he reach to Mol from Dudhapura and he told the police that his brother and his bhabhi came to take him. He has denied that no one had come to take him and he went to Mol village. He was told by Kali that Ramesh had given a blow of scythe to his brother. He came to know this fact after reaching to Mol village. He has admitted that all the details as to how Kanu was assaulted were known to him after going there. He has also admitted that as his brother and the accused had a dispute regarding land and as a suit was pending, they all have filed a false case against the accused persons. He has also denied that he was giving a false deposition.
18. PW No. 9 Niruben Shanabhai Nayak, daughter of the brother of the deceased, is a minor aged 15 to 16 years. Her deposition was recorded after the trial Court was satisfied that she understood the seriousness of oath. In her examination-in-chief she has stated that Page 32 of 53 R/CR.A/2919/2008 CAV JUDGMENT her father's name is Shanabhai. The deceased, Kanu, was her uncle. She and her father used to live separate from Kanu. Kanubhai had a dispute with Javrabhai regarding land. The name of Javra's son is Ramesh. The name of other son is Narsiyo. She has identified all these accused persons who were present in the court on that day. 18.1 She has further stated that a case was pending in the court between her uncle Kanubhai and Javrabhai. Kanubhai had won the case. After winning the case, her father and uncle Kanubhai went to till the farm and they ploughed it. After ploughing the land they returned to home at about 5-00 hours in the evening. She was at home at that time. At that time, Ramesh, Narsiyo and Javro were abusing and they came to the house of her uncle and she was preparing rotla (thick chappatis) at that time. At that time, her father and mother had gone at the house of her maternal uncle. These persons were abusing her uncle Kanubhai. They came to the house of her uncle and spoke bad words. They dragged her uncle and brought him near to their house. Her father shouted not to beat his brother and she came out of the house at that time and stood near her father. At that time Ramesh gave a blow of scythe on the back of her uncle and Javra gave a blow of scythe on his throat. Thereafter, they ran to beat them but they ran way. They ran away and hid in a farm. She did not know as to where the accused persons had gone after giving blow with scythe. Entire throat of Kanubhai was cut and little skin had remained. She has identified muddamal article No.6 to be the weapon Page 33 of 53 R/CR.A/2919/2008 CAV JUDGMENT that was in the hands of Javra with which Kanubhai was given a blow on his throat with this scythe. Her aunt gave a complaint of this incident and police recorded her statement.
18.2 In the cross-examination, this witness has stated that her house and her uncle's house is as much as distance from the gate of court from the witness box. At the time of the incident, she was preparing rotla (thick chappatis) in her house. She heard a shout of her father. Except that no one else was speaking. Her father came after shouting of half an hour. The house of her uncle was situated below the hilly area and her house is on hill. It was not dark at that time but it was day. It was 7-00 hours at that time. She has stated that it did not happen that her father and she were shouting. She dictated such facts before the police. She went to the place of incident after 10 minutes. She has denied that when she went there, her father and mother were running here and there due to fear. She has dictated in her police statement that her father had shouted and said not to beat his brother and at that time she came out of the house. She has also dictated in her police statement that Ramesya gave a blow of scythe in the back part of Kanubhai. There is a difference between scythe and paliya. Scythe is long and pariya is short. There is no paliya in the muddamal. She has stated this fact after seeing. She did not see pariya with the police. She has dictated in her statement before the police that Javra gave a blow of scythe on the throat of her uncle. It is true that it did not happen that Javra may have hit with pariya and Page 34 of 53 R/CR.A/2919/2008 CAV JUDGMENT Rameshiya may have hit with scythe.
18.3 They hid in a farm due to fear and came out at 4-00 hours in the morning and she did not know as to what happened during that time at the place of incident. She also did not know as to who had come and gone at the place of offence during that time. It did not happen that after reaching there, when she saw the throat of her uncle was cut. She had dictated in her statement before the police that when they reached to see, the throat of her uncle Kanubhai was almost half cut. When she went there, no one else had come from the village. She, her mother, and her father, thus they total three persons, were there.
18.4 Chhtrabhai is her uncle. He resides at Dudhapura village. He might have come to Mol village at about 4-00 hours in the morning. She has denied the suggestion that Javra, Ramesh and Narsinha has not assaulted Kanubhai. She has also denied the suggestion that that she was not present at the time of the incident. She has also denied that as there was a dispute between her uncle and Javra regarding land, a false case has been filed. She has further denied that she was giving false deposition at the instance of her father. As they are farming, they keep tools like scythe and pariya. She has denied that she was falsely stating the fact of scythe and pariya.
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19. Salambhai Chhaganbhai Nayak is PW. No. 10. In his examination-in-chief he has stated that he is a resident of Jir Faliya at Mol village and he resides there with his family and earned his livelihood by doing agricultural work. House and farm of Kanu Bhagda was situated near his house and farm. Near his house and beyond the hill, Javrabhai and his sons Ramesh, Narsinh lived in a hut in the farm of Kanu Bhagda and a case of Kanu Bhagda regarding land was pending in Halol Court. As Kanu Bhagda won the case of Halol Court, he had ploughed the disputed land. The incident took place about ten-eleven month ago. When the incident took place, he was at his house. The incident took place at about 7-00 hour of evening. Shouting took place. As so much shouting were heard, they did not come out of the house. Next day morning, he came to know from others that the accused persons have killed Kanu by quarreling with him. Except this, he did not know any other fact. As a complaint was registered, the officer took his statement for the purpose of investigation.
19.1 In the cross-examination by the learned advocate for the accused, this witness has stated that he was listening to radio at the time of the incident and he did not come to know about any shout. He had no conversation regarding the incident with anybody. Police persons came to call him at about 12-00 hours in the night. At that time he came to know and the police took him.
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20. PW. No. 11, Mohanbhai Maliyabhai Nayak, in his examination-in- chief has stated that he resided with his family in Vajir Faliya at Mol village and earn his livelihood by doing agricultural work. The incident took place about eleven months ago. He was at his house at the time of the incident. The incident has taken place about six-seven hours in the evening. On the day of the incident, as a bullock had hit him on his hip, he had fallen on a stone and as he was injured, he slept at home. Agricultural land of Kanu Bhagda was situated near his house and the accused persons were living in this land of Kanu Bhagda and ploughing the land and a case was pending in Halol court. As an order was passed in this case, the deceased Kanu ploughed the disputed land. As Kanubhai ploughed this land, shouting had taken place with the accused person but he did not go at the place of offence. Afterwards, he came to know from others that as a quarrel had taken place between the deceased and the accused person, he has been assaulted and his death is caused. Except this, he did not know any other fact. The police recorded his statement for the purpose of investigation.
20.1 In his cross-examination, he has stated that he did not know the fact as to what shouting had taken place and as to who was speaking what. He came to know that so much shouting had taken place.
21. Parasram Magilal Patel, the Medical Officer who performed the post-mortem of the deadbody of the deceased has been examined as Page 37 of 53 R/CR.A/2919/2008 CAV JUDGMENT PW. No. 12. In his examination in chief, he has stated that on 30th June 2007, he was present on his duty in Community Health Center at Goghamba. During that time at about 12-00 hours in the noon, police constable Ganpatsinh Jaysinh Buckle No.1527 came with a yadi of PSI Rajguru and with inquest and brought a dead-body for postmortem. He took possession of the dead-body and started postmortem of the dead-body at about 1-00 hour and completed the postmortem at about 3-00 hours in the afternoon. On conducting external examination of the dead-body , the dead-body was of a male Hindu person who was approximately 45 years old. On this dead-body , a grey coloured underwear was worn. On the clothes of the dead-body , stains of dried blood and stains of mud were found. Details of column No.9 were not applicable. Structure of the body was normal and the body was cold. Process of rigor mortis was seen in the dead-body . It was found in both hands and both legs. On conducting postmortem of the dead-body , P.M. lividity was seen on back part of body, on hips, on shoulder and on neck. Looking the appearance of the dead-body , it was not swollen. Eyes were semi opened. Pupil was semi dilated. The mouth was closed. No bleeding was seen from mouth and teeth. Tongue was congested and it had became black. Skin on the body was shrunken. No genital injury was seen on this dead-body . Fact of column No.16 is not applicable.
21.1 On conducting post-mortem of the dead-body , he found the following injuries.
Page 38 of 53 R/CR.A/2919/2008 CAV JUDGMENT 21.1.1 On the back side right part of the neck a semi circle shaped i.e. 'C' shaped incised wound was seen. This wound was such which can be caused with a very sharp weapon. Its size was 30 cm. long. It was 'C' shaped. It was 10 cm wide and 8 cm deep wound. It was extended from just below right sub-mandibular region to left side just below mastoid region. All veins of skin of back of neck were completely cut. All muscles of back of neck were completely cut. All nerves on back of neck like vertebral nerves, carotid nerves and jugular nerves were cut and part of cerebellum and 4th ventricles of brain was cut.
21.2 On conducting the postmortem, other injuries were seen on left parietal and frontal region. That injury was about 10 cm long 2 cm wide and 0.7 cm deep. Other injury was found on right side shoulder and it was stab wound. That injury was about 5 cm deep 4 cm wide and 4 cm long. All these injuries were such which can be caused with sharp weapon. When they conducted the postmortem, fracture was on the right side shoulder. Fracture was also seen on left side of the skull. In first, second and third portion of the throat, fracture was seen. All the above injuries of column No.17 and 18 were ante mortem.
21.3 On conducting internal examination of the dead-body , there was a wound on left parietal and frontal region which was 10 cm long Page 39 of 53 R/CR.A/2919/2008 CAV JUDGMENT 2 cm wide and 0.7 cm deep CLW wound. Looking on the above part of the skull, fracture was seen on its left bone and frontal bone. Back part of the skull was cut.
21.4 The injury sustained in the head wherein the injury sustained in the head, injury No.1 is such that can be caused with hard and blunt substance and the injury No. 2 seen in the skull is such that can be caused with sharp weapon.
21.5 Brain was congested and part of brain and 4th ventricle was cut. This injury was such that can be caused with sharp weapon. On examining formation of chest, nothing was found on walls and ribs and partition of lungs was congested. Vocal cord and wind pipe were congested and right lung was congested and swollen. Left lung was also congested. Cover of heart was also congested. Heart was congested and all four chambers were empty. Big veins were empty. On examination abdomen, nothing was found in the cavity of abdomen and on its walls. Mouth was closed. Teeth were normal and tongue was also normal. Pharynx was normal. Oesophagus was congested. Semi digested food was found from stomach and stomach was congested. Excretion was found from small and large intestines. Liver, stomach, spleen, kidneys were congested. Bladder was empty. There was no injury on genital organs. Semi digested food was found from stomach and it can be presumed that the food might have been consumed by the deceased before five hours of the death and within Page 40 of 53 R/CR.A/2919/2008 CAV JUDGMENT six to eight hours. Samples were not taken for chemical analysis. On examining spine and spinal cord, due to the injury mentioned in column No.17, vertebra 1, 2 and 3 of the spinal cord were cut. 4th ventricle was entirely cut. As per his opinion, the death was caused due to neurohaemorrhagic shock. This neurohaemorrhagic shock was caused due to the injuries sustained because of amputation of throat with sharp and hard tool and death was caused because of this. The injuries shown in column No.17 by him which was attached with P.M. note in a separate papers and the same has been mentioned as a part of P.M. All those injuries No.1 to 2 and 4 can be caused with a weapon mentioned in muddamal article No.6. The injury mentioned in No.3 can be sustained with hard and blunt weapon. He prepared the P.M. note in his own handwritings and made seal and signature. As the column No.17 of P.M. note was smaller, injuries were written on different paper and attached with it. He has proved the P.M. Note. He was shown muddamal article No.6 and if reverse blow is given with the same, the injury No.3 can be sustained.
21.6 In the cross-examination, this witness has stated that the injuries mentioned by him can be possible by two-three blows. The dead-body on which he conducted postmortem was not brought to him in a condition that its head was separated from the trunk. Injury No.1 of the column No.18 can be sustained if any person forcefully dashed with hard object. Among all these injuries, no injury was such that can be caused with circled object stick, rod and pipe. Police Page 41 of 53 R/CR.A/2919/2008 CAV JUDGMENT persons came to him with the dead-body . He has denied the suggestion that that the injuries found on the body of the deceased can not be caused with muddamal article No.6.
22. The Police Station Officer of Rajgadh Police Station, Kalabhai Sagabhai Bhabhor, was examined as PW No.13. In his examination- in-chief, he has stated that on 30th June 2007, he was present on his duties as a police station officer in Rajgadh police station. During that time, PSI Mr. J. B. Jadav came taking a written complaint to register the offence, and he gave the complaint to register PSI. He registered an offence vide Rajgadh police station Ist Crime Reg. No. 74/07 u/s 302, 341, 504, 114 of Indian Penal Code and u/s 135 of B.P.Act. Thereafter, he took back the complaint register in his custody. During this time, P.M. of the dead-body of the deceased Kanubhai Bhagdabhai Nayak and clothes taken from the dead-body were handed over to Head Constable Ganpant Jaysinh. As those clothes were produced as muddamal by Ganpatsinh Jaysinh for the purpose of investigation, they seized those clothes in the presence of two independent panchas after drawing a panchnama. He has proved the said panchnama.
22.1 In his cross-examination, this witness has stated that he did not know the actual time he was there. He has to register the crimes which come up during his charge. He has not registered the crime of 74/07. This crime was registered by PSI. When the complaint of this Page 42 of 53 R/CR.A/2919/2008 CAV JUDGMENT crime came up before him, he sent the complaint to PSI J. B. Jadav to register the complaint and to register the crime. He was shown the complaint of Exh-2 and he has stated that he did not know as to who had written it. He has further stated he has not filed any complaint in this case and the PSI had taken the charge from him to register the crime. He did not make any remark to hand over him investigation.
23. PW. No. 14, Jasavsingh Becharsinh Yadav, in his examination- in-chief has stated that during the period around 30th June 2007, he was performing duties at Rajgadh Police Station. Meanwhile, the complainant-lady Kaliben came with the fact of the incident, hence, the complaint as per her dictation had been written in his presence and as it was a serious offence, he himself registered complaint in the police-station and had taken the charge of investigation. After taking the charge of the investigation, requisite panchnamas had been drawn in the presence of independent panchas. Muddamal had been seized. The weapons used in the incident had been seized. The P.M. of the dead-body had been conducted. The statements of the concerned witnesses had been recorded as per their dictation with reference to the incident. Meanwhile, the accused persons were found, hence, they were arrested and were produced in the Court. He has proved the complaint and identified his signature is there in. In this case, a yadi had been written to the Medical Officer of Ghogamhba to conduct the P.M. of the dead-body , to write P.M. Note. He has proved the yadi and his signature in it. After the post-mortem Page 43 of 53 R/CR.A/2919/2008 CAV JUDGMENT of the dead-body of the deceased Kanubhai Bhagdabahi in this case was conducted, the dead-body had been handed over to police- constable. He has also proved the yadi for handing over the possession of the dead-body . In this case, he had written the statements of the witness Shana Bhagda Nayak, Suratiben Shana Nayak, Chhatrasinh Bhagda, Niruben Shanabhai Nayak, Mohan Maliya Nayak, Salambhai Chhaganbhai Nayak as per their dictation. Meanwhile, he was transferred to Godhra, and therefore, he had had handed over the charge along with its record to the PSI Ansari. 23.1 In his cross-examination, he has stated that he came to know about the incident at five o'clock in the morning and Kaliben had informed that to him in person. He did not know as to how many persons were there with her. At five o'clock in the morning, he was at home. He had come to know through PSO that a murder had taken place and they had come to lodge complaint and asked him to come to the police-station and he replied that he was coming to take the complaint. He has admitted that the PSO is a competent authority for registering offence of police-station and the PSO could register this complaint. The offence was serious and he was present and he had taken the complaint on that account. Kaliben had not met him directly. He had taken down the complaint himself. He has admitted that the complainant has not dictated in her complaint that her husband had slept in a bed. He has also admitted that the names of Maslo and Ravji were not there. She has not dictated that Zavra had Page 44 of 53 R/CR.A/2919/2008 CAV JUDGMENT given a blow to her husband at the part of throat and throat was cut. She has also not dictated that Ramesh had given a blow of paliya to her husband. She has also not dictated that Narsinh beat her husband with iron-stick. She has also not dictated that the rest beat her husband with stones. She has also not dictated in her complaint that they would kill her also. She has also not dictated that Rajiv and Mashlo beat with stone. He has admitted that it was not dictated that there was no one nearby and (no one) had come and hereafter, the persons of street had come and she had gone to police-station. She has also not dictated that Zavera had given blow of paliya. She has also not dictated that her husband sustained the blow of scythe, the trunk was separated and fell on the ground. She has also not dictated that after the trunk was cut, Ramesh had given a blow of paliya to her husband. She had also not dictated that she sat beside the dead-body for hours.
23.2 It has not so occurred that he received a phone-call and on getting vardhi, he went to the place of the incident. It has also not so occurred that on getting vardhi, he had gone to the place of the incident and had come back taking along the lady-complainant and the other persons in jeep. He has denied that after preparing papers, the dead-body had been left there. He has stated that he had recorded the statement of Shana Bhagda. In his statement he has dictated the fact that after the incident occurred, they both, the husband and wife went there. He has admitted that that Shana Page 45 of 53 R/CR.A/2919/2008 CAV JUDGMENT Bhagda, in his statement before him has not dictated that the accused were behind him and therefore, by running away, he went to the house of his elder brother Chhatrisinh at Dudhapura. He has also admitted that it was not dictated that Javra had inflicted scythe blow to his brother and his neck was almost cut. He has also admitted that it was not dictated that Ramesh had given blow of paliya. The fact that Narsinh had given a blow of iron-pipe on foot has also not been written in his statement. He had recorded the statement of Suratiben Shahabhai Nayak. In her statement, it has not been dictated that Ramesh had given a blow of the paliya being in his hand to her jeth (elder brother of husband) and that Narsinh had beaten with iron- stick on the entire body. It was also not dictated that they being frightened, had gone at Dudhapura, at the place of her jeth. It was also not been dictated in her statement that Ramesh had given a scythe blow to Zavara and as abusive terms were used, she and her husband were frightened and had gone to Dudhapura. He had recorded the statement of Chhatrising Bhangada and this witness had admitted that the said Chhatrising had dictated in statement that he had gone to Halol to take documents of land and the disposal of Court etc. From there, he had gone to Godhra Government Hospital. This dead-body was not brought at Godhra Government Hospital. This witness has stated that he had also recorded the statement of Niruben Shana Nayak. She has not dictated in her statement that the shouting of her father were heard, except that, the shouting of no one was heard. He has admitted that this witness has not dictated in his Page 46 of 53 R/CR.A/2919/2008 CAV JUDGMENT statement that he had gone to the place of the incident after ten minutes. He has also admitted that this witness has not dictated that being fearful, they had come out at four o'clock in the morning. This witness has stated that the weapon of muddamal article no. 6 is scythe and not paliya. It has not come to be noted in his investigation that paliya was used. It has not been submitted by all the witnesses that the incident had taken place with paliya. He had not seized any paliya. He has denied the suggestion that writing the panchnamas later on, the signatures of panchas were taken. He has admitted that such a fact did not come out that Zavara had beaten the deceased with paliya. He has also denied that he arrested them in spite of the fact that the accused have not committed any offence. He has also denied that the investigation done by him in his own handwriting is conducted in a wrongful manner.
24. Arvindbhai Becharbhai Ansari is PW. No. 15. In his examination- in-chief, he has stated that he was present on duty as PSI in Rajgadh Police Station from 10th June 2007. At that time the incomplete investigation of Rajgadh Police Station Ist Crime Reg. No. 74/07 was given to him and he took charge of the investigation. A yadi was written to Mamlatdar Office at Halol to prepare a map of the place of incident by CPI for the purpose of investigation. He has proved the yadi. As chemical analysis of the seized muddamal was required in this case, the muddamal was sent to FSL Vadodara along with dispatch note. He has proved the yadi, the letter received by FSL Page 47 of 53 R/CR.A/2919/2008 CAV JUDGMENT Vadodara for the analysis of muddamal, the letter of FSL Vadodara dated 4th December 2007, the analysis report of FSL Vadodara dated 4th December 2007, and the report of serological investigation sent by FSL Vadodara. At the time of the incident, the notification of Addl. District Magistrate, Panchnama, Godhra was in force u/s 37/1 of Mumbai Police Act. In this case of investigation, the Prosecution produced xerox copy of the order of Civil Judge having seal and signature and he has proved the same. He has also proved copy of village form No.6 - records of right, and village form No. 7/12. As investigation was completed in this case, a charge-sheet was been filed in the Court against the accused persons.
24.1 In his cross-examination, he has stated that in this case, he filed a charge-sheet only on the basis of the reports of expert and the papers of investigation done by the earlier officers which were produced before him and he did take statements of any witness.
25. After hearing the learned counsel for the parties and after going through the aforesaid material on record, we find that there was a dispute between the family of the deceased and that of the accused over a plot of land situated by the side of the house of the deceased. Ultimately, a civil litigation was filed where the deceased and his two brothers were the plaintiffs while the accused persons No.1 to 3 and two of the sons of the accused No.1 were the defendants. The Civil Court, on 30th April 2007, decreed the suit in favour of the plaintiffs Page 48 of 53 R/CR.A/2919/2008 CAV JUDGMENT thereby declaring their title to the disputed property and restraining the three accused and the other two defendants from disturbing the cultivation of the plaintiff in the property and a copy of the said judgment is produced on the records at Exhibit 50. According to the evidence given on behalf of the prosecution, the deceased and his younger brother went to the office of their lawyer and collected the certified copy on the day of the incident and thereafter, having been advised by their advocate to cultivate the land, they returned to their home and started cultivating the land on the day of the incident. After cultivating, when the deceased came back, the three accused persons came to the residence of the deceased and inquired as to why the deceased had cultivated the land in dispute. The deceased having answered stating that they had won the litigation and have been advised by the lawyer to cultivate the land, the accused persons went back and thereafter, came back within half an hour with weapons in their hand. Thereafter, the accused persons dragged the deceased from his house and killed him by using those weapons as described in detail by the widow of the deceased in her evidence. The dead-body of the deceased was lying on the disputed land, which was the subject matter of the civil litigation. The younger brother of the deceased and his wife and daughter have also claimed to be eyewitnesses of the incident as they were residing next to the house of the deceased.
26. Both Mr. Barot and Mr. Goswami, the learned advocate Page 49 of 53 R/CR.A/2919/2008 CAV JUDGMENT appearing on behalf of the appellants in the above two appeals strenuously contended that it would appear from the deposition of the widow of the deceased that his brother-in-law and sister-in-law came after an hour and by referring to the aforesaid statement, contended that the deposition of the widow of the deceased cannot be relied upon.
27. We have gone through the entire deposition of the above three witnesses. The fact that on the day of the incident they have collected the certified copy of the order of the Civil Court from their advocate and they cultivated the land has been reiterated by all the three eyewitnesses. There is no reason to disbelieve such version as admittedly there was a decree which has been produced at Exhibit 50 and the fact that on the same day the land was cultivated has also not been disputed by the accused persons. It appears that after the cultivation, when the deceased and his brother came back to their residence, the accused persons came for the first time to the house of the deceased and thereafter, when the deceased asserted that he had a right to cultivate, they went back and came back after about half an hour with weapons in their hand, and dragged the deceased from his house and killed him. According to the brother of the deceased and his wife, they were chased by the accused persons as a result they again came subsequently after the incident. In such circumstances, although a part of the deposition of the brother of the deceased and sister-in-law of the deceased regarding actual Page 50 of 53 R/CR.A/2919/2008 CAV JUDGMENT witnessing of the killing may be in doubt, but they being residents of the adjoining house and the altercation having taken place twice, one immediately after the cultivation and the other, after half an hour, we do not find any reason to disbelieve their version so far as the altercation is concerned. Considering the evidence as a whole, there is no reason to disbelieve the version of Kaliben, the widow of the deceased, who was all along with her husband in her residence. It is well known that there may be some minor discrepancies in the evidence of the witnesses, but for that reason, the evidence adduced by the eyewitnesses cannot be disbelieved altogether. We find that even in the cross-examination of Kaliben, the widow of the deceased, no suggestion was given that the accused persons did not at all come to the residence of the deceased but what was suggested was that Ravji and Malso did not come to her house when the accused persons had come to her house for the first time, which was accepted by Kaliben. Such being the position, it is apparent that there is virtually admission on the part of the accused persons that atleast the three accused came to the residence of the victim calling for the reason for cultivation.
28. Thus, the prosecution case has been fully proved that cultivation of the land after the verdict of the civil litigation was the cause of the dispute and that the victim was murdered. There is no suggestion given to Kaliben or any other witnesses that any other persons have killed the victim. In such circumstances, in our view, Page 51 of 53 R/CR.A/2919/2008 CAV JUDGMENT the variation in the deposition as regards the actual using of weapon by the brother and sister-in-law of the deceased may not be accepted but there is no reason to disbelieve Kaliben, the widow of the deceased, who was all along with the victim. Moreover, once it is accepted that the three accused dragged the deceased out of his house and immediately thereafter the deceased was found murdered in the adjoining land, the subject-matter of the dispute, there is no escape from the conclusion that it was the appellants who killed the victim. The description of the weapon given by Kaliben supports the medical version also that those were used in killing the victim.
29. Although Mr. Goswami tried to convince us that the appellant No.3 had not actually used the weapon and has not inflicted any fatal blow on the deceased, he should be exonerated, we are not at all impressed by such submission. The dragging of the deceased from the house by all the three accused with weapons in their hand and subsequent killing do amount to actual participation in the act, and even if we assume for the sake of arguments that the appellant No.3 did not use any weapon, the fact that he also dragged the deceased from the house along with his father and brother conclusively proves abatement of the murder and also common intention of causing murder.
30. We, therefore, find that in the facts of the present case, the learned Sessions Judge, on consideration of the materials on record, Page 52 of 53 R/CR.A/2919/2008 CAV JUDGMENT rightly held that the appellants are guilty of the offence under sections 302, 504, 341 and 114 of the Indian Penal Code. 30.1 We, therefore, find no reason to interfere with the well-reasoned findings recorded by the learned Sessions Judge. Both the appeals are devoid of any substance and are consequently dismissed. 30.2 The substantive sentence imposed upon Zavarabhai Harjibhai Nayak [accused No.1] and Narsinhbhai Zavarabhai Nayak [accused No.3] were suspended and they were released on bail by this Court during the pendency of these appeals. The appeals having been dismissed, the bail granted to these two accused persons stands cancelled forthwith, and they are directed to surrender to the jail authorities forthwith.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 53 of 53