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2017 DIGILAW 489 (GUJ)

Chandubhai Narsinhbhai Tadvi v. State of Gujarat

2017-03-02

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Biren Vaishnav, J. 1. Having been convicted of offence punishable under section 302 read with section 149 of Indian Penal Code and sentenced to life imprisonment thereunder and further being convicted of offences under sections 143 and 148 of the Indian Penal Code and having been sentenced to rigorous imprisonment for six months and rigorous imprisonment for three years respectively, the original accused - appellants herein have come in appeal. By a judgment rendered on 27.12.2011 by the learned Additional Sessions Judge, Vadodara, the accused were convicted and sentenced for the aforesaid sections. 2. Raees Shankarbhai Tadvi was the complainant who filed the complaint at Ex.18. According to the complainant, on 14.05.2010, when he and his wife Induben, at around 7 in the evening, were sitting with his brother and his wife Hansaben and their mother Radhaben after dinner, the seven accused entered their house. All the accused were carrying sticks. Motivated by the fact that the complainant's mother was performing witch- craft, the accused indiscriminately attacked Radhaben, the mother of the complainant with sticks. All these seven accused have been named in the complaint as having attacked the complainant's mother with sticks. When his brother Mukeshbhai tried to intervene, he was also attacked by a stick and he sustained injuries on the back. The accused had come with an intention to put Radhaben to death, suspecting that their brother Dineshbhai had died at her hands as she was practicing witch-craft. After having put Radhaben and his brother Mukeshbhai to death by indiscriminately hitting them with sticks, their bodies were hung by a rope from the tree. Based on this complaint, investigation was carried out and a charge-sheet at Ex.4 was filed inditing the accused for offences referred to hereinabove. 3. The complainant Raees Tadvi has been examined as PW-2 at Ex.17. The complainant states that he is a resident of Bhangiawad. He is staying along with his wife Indiraben, brother Mukeshbhai and his wife Hansaben, his mother Radhaben. His father Shankarbhai has passed away. His grandfather Narsinhbhai had two sons Shankarbhai and Naranbhai. The accused were sons of the second marriage of his grandfather, therefore they were the uncles of the complainant. He further stated that his mother Radhaben and his brother Mukesh were done to death by the accused Chandubhai, Ambubhai, Udaysinhbhai, Vithalbhai, Jashubhai, Vikrambhai and Tinabhai. His father Shankarbhai has passed away. His grandfather Narsinhbhai had two sons Shankarbhai and Naranbhai. The accused were sons of the second marriage of his grandfather, therefore they were the uncles of the complainant. He further stated that his mother Radhaben and his brother Mukesh were done to death by the accused Chandubhai, Ambubhai, Udaysinhbhai, Vithalbhai, Jashubhai, Vikrambhai and Tinabhai. The incident occurred on 14th May at around 6 in the evening. Both his mother and brother were done to death with sticks and stones. When his brother and his mother were attacked he was nearby. He thereafter ran away. Chandubhai - accused No. 1 had abused his mother and called her a witch and stated that she was responsible for his brother Dinesh's death and therefore she ought to be killed. With this statement, all the seven had indiscriminately started hitting his mother with sticks. All of them were carrying sticks and stones. After having killed his mother and his brother Mukesh, they hung their bodies separately on separate trees with a rope. He thereafter went to Naswadi police station and informed the police. The police recorded his complaint as it was narrated by him. Shaniben, his grandmother was with him when he returned from the police station. She was also injured. Induben, his wife, Shantibhai and Nareshbhai were also present. His brother Mukeshbhai and his mother Radhaben were sitting on the verandah. He further stated in his testimony that he knows the persons who attacked his mother and his brother and he further identified them in the court. 3.1 This witness was cross examined. In the cross examination of this witness, it has come out that primarily the dispute and the motive behind the incident was a land dispute and that several court proceedings pertaining to the lands in question were pending before various courts. The defence has brought out contradictions in the police statements. In the cross examination, this witness further stated that he had gone to Ghutiya Amba village and called Shantibhai and that he had told them that he had seen a commotion at a distance and then turned away from his house. He admitted that it was the villagers of Ghuntiya Amba who called for the ambulance and the police was summoned. 4. Hansaben Tadvi, the wife of deceased Mukeshbhai has been examined as PW-7 at Ex. 35. He admitted that it was the villagers of Ghuntiya Amba who called for the ambulance and the police was summoned. 4. Hansaben Tadvi, the wife of deceased Mukeshbhai has been examined as PW-7 at Ex. 35. According to this witness, accused Chandubhai and Vikrambhai had dragged her mother-in-law outside the house. Thereafter, the remaining accused Udaysinh, Ambubhai, Vithalsinh and others had started beating her mother-in-law and her husband Mukesh. Her mother-in-law was attacked on the verandah of the house whereas Mukesh who was in the room was subsequently brought out and attacked and indiscriminately beaten with sticks. When the incident happened, she along with her sister-in-law was present in the house. They had subsequently, left and returned at 2 in the night. Her husband and her mother-in-law were hung by a rope on separate trees. When the muddamal sticks were shown to this witness, she identified the sticks. She also identified all the accused who were present in the court. 4.1 In her cross examination, she stated that there was a long pending land dispute between the relatives. She admitted that a crowd had gathered and all of them were saying that Radhaben, her mother-in-law should be done to death. She also admitted that her brother-in-law, Raees - the complainant had left for village Ghuntiya Amba and had returned with many of his relatives and thereafter the police was called. Shantibhai Devabhai of Ghuntiya Amba village accompanied Raees back home. In her cross examination, this witness has further stated that it was on a subsequent date that the names of the accused were mentioned in the complaint. She admitted that at 7 in the evening, on the date of the incident, her sister-in-law and mother-in-law were present in the house when she heard the accused approaching shouting that Radhaben should be killed. They were carrying sticks in their hands. She along with her sister-in-law Induben thereafter left from the rear entrance. 5. PW-8 at Ex.41, Induben is the complainant's wife. She in her testimony stated that Vikrambhai and other accused entered the house, attacked her mother-in-law Radhaben with sticks and killed her. 5.1 In her cross examination, she admitted that when the incident happened she was at home and her sister-in-law was also present. That the accused had started insulting her mother-in-law. She identified the accused who were present in the court. 5.1 In her cross examination, she admitted that when the incident happened she was at home and her sister-in-law was also present. That the accused had started insulting her mother-in-law. She identified the accused who were present in the court. In her cross examination, she further asserted and admitted that all the accused were carrying sticks and had indiscriminately attacked her mother-in-law and her brother-in-law. Mukesh who was hiding in another room was also dragged out from his house and attacked with sticks. Thereafter, she also as narrated by other witnesses, confirmed the fact that their bodies were hung separately on trees with ropes. In her cross examination, she further admitted that at the time of the incident, she was in the kitchen and her sister-in-law Hansaben was also present in the court. She denied the suggestion that it was decided on the second day in consultation with the villagers of Ghuntiya Amba that the names of the accused should be added in the complaint. 6. Shaniben Bhavsinhbhai, PW-9 has been examined at Ex.45. According to the version of this witness, she along with her husband Bhavsinhbhai was passing by on a motorcycle and had witnessed the incident. According to the version as narrated in the examination-in- chief, Udaysinh and Vikram had stopped the motorcycle on which she and her husband were travelling and attacked her husband Bhavsinhbhai. Mukesh was being hit with sticks at the hands of Chandubhai and Udaysinh. All the accused were shouting "Kill, Kill" and indiscriminately attacked Radhaben and Mukeshbhai. She identified all the accused who were present in the court. This witness has been cross examined. She confirms that her house is in close proximity with the complainant Raees's house. 7. Bhavsinhbhai Lakhmanbhai is PW-10 who is examined at Ex.46. This witness in his examination-in-chief, states that when he and his wife Shaniben were returning on a motorcycle and when they were passing by Bhangiawad near Raees' house, they saw Vikram and Udaysinh standing there. Udaysinh stopped his motorcycle and thereafter Chandubhai shouted and hit him with a stick. Udaysinh, Vikram and three others were also wielding sticks. They attacked his wife too. He saw Radhaben lying on the floor at the door of Raees' house. According to this witness, the motive behind killing Radhaben was that Chandubhai held her responsible for having practiced witch craft and killing his brother Dinesh. Udaysinh, Vikram and three others were also wielding sticks. They attacked his wife too. He saw Radhaben lying on the floor at the door of Raees' house. According to this witness, the motive behind killing Radhaben was that Chandubhai held her responsible for having practiced witch craft and killing his brother Dinesh. According to this witness, when the incident occurred Induben and Hansaben were present and both of them were injured as a result of being attacked with sticks at the hands of the accused. After the incident, he and his wife were taken to a dispensary at Naswadi. In his cross examination, this witness admits that after being injured as a result of the attack, he had left the village and then came later on the next day and that he was not an eye witness to the incident. 8. Shantibhai Bhil, PW-12 has been examined at Ex.56. As is evident from the testimony of the complainant Raees, the complainant Raees on seeing the incident had left and turned away from his house and then gone to the residence of Shantibhai at Ghuntiya Amba. According to the version of this witness, in his examination-in-chief, it was Raees who had informed him of the incident. He had heard from Raees that the accused had attacked Radhaben and Mukeshbhai and also narrated the motive behind the incident as is evident from the testimony of other witnesses. He accompanied Raees later on and then saw the bodies of Radhaben and Mukesh hanging from separate trees by a rope. In the cross examination, this witness has further stated that when Raees came to call him both of them then left to the village with other villagers. 9. PW-11 is Dr. Sandeepkumar Thakur who carried out the post mortem of Radhaben and Mukeshbhai. The injuries that both Radhaben and Mukesh sustained as a result of being attacked by sticks are part of the post mortem report which are produced at Exs.51 and 52 respectively. The injuries that the deceased Radhaben suffered have been, according to the witness, made out in column No. 17 as under: "Injury No. 1 Laceration over the anterior of the neck about k. Width and gan in length Injury No. 2 Multiple bruises present all over the body." 10. The injuries that the deceased Radhaben suffered have been, according to the witness, made out in column No. 17 as under: "Injury No. 1 Laceration over the anterior of the neck about k. Width and gan in length Injury No. 2 Multiple bruises present all over the body." 10. As far as Mukesh is concerned, the injuries that he sustained are reproduced hereunder: "Injury No. 1 laceration over the anterior of the neck about 1 c.m. and 10 c.m. in length. Injury No. 2 Laceration marks present over the Rt. Side 4 c.m. in size medially c irregular shape Multiple bruises present all over the body. Injury No. 3: 3 c.m. laceration mark present Below knee joint c irregular shape. Injury No. 4 Multiple bruises present all over the body." In the opinion of the doctor, the cause of death was as a result of the injuries sustained on being attacked by the sticks. 11. PW-13, Dr. Gunvant Kishorebhai is the doctor who carried out the subsequent post mortem. Nothing substantial or different turns up from the testimony of this witness. 12. Based on the evidence on record, in the assessment of the evidence, we need to adjudicate as to whether the accused, seven in number, have been rightly convicted for the offences charged for. Ex. 18 is the First Information Report lodged by Raees. From the narrative in the complaint, it is evident that on being suspicious of the complainant's mother practicing witch-craft and being responsible for the death of their brother Dinesh, the accused, seven in number, indiscriminately attacked Radhaben with sticks. With an intention to see that she is done to death, they entered the house and attacked her. Mukesh, the brother of the complainant when tried to intervene met a similar fate. Both of them were done to death and their bodies were subsequently hung by a rope on separate trees. This is the version that the complainant narrates in the First Information Report. When the testimony of the complainant is appreciated in light of the story that is put out in the First Information Report, evidently he stands by the fact that he did see the accused attacking his mother Radhaben and brother Mukesh. He also confirms the motive behind the incident. When the testimony of the complainant is appreciated in light of the story that is put out in the First Information Report, evidently he stands by the fact that he did see the accused attacking his mother Radhaben and brother Mukesh. He also confirms the motive behind the incident. As it has come out in the cross examination, in addition to the fact that the accused were harbouring suspicion of the mother of the complainant practicing witch craft and being responsible for the murder of their brother Dinesh there were certain undercurrents of strain in their relationship due to the pending land dispute. Contradictions have been tried to be brought out in the cross examination of this witness inasmuch as the defence has tried to bring out that there are certain statements he had not stated before the police, or that there are variations in the narratives in the First Information Report as compared to that which was part of his testimony. The credibility of this witness has been sought to be put in doubt by stating that he possibly was not an eye witness as he had not actually witnessed the incident and had turned away from a distance. That he was not the actual eye witness to the incident has also been doubted in light of the testimony of the Investigating Officer when it is contended by Mr. Qureshi, learned advocate for the appellants that it was actually Shantibhai who was the informant in first point of time and had witnessed the incident. 12.1 When the evidence and the testimony of this witness is compared to that of the other witnesses, it is seen from the testimony of Hansaben, the wife of deceased Mukesh that she was present when the incident happened. She confirms that the accused, seven in number, entered the house and attacked her mother-in-law Radhaben with sticks in hand with an obvious intention to put her to death. When Mukesh, her husband tried to intervene, he was dragged out of the room and he also met a similar fate. In her cross examination, she admits that as a result of the scuffle that occurred and when her husband tried to intervene, he was surrounded and attacked with sticks. When Mukesh, her husband tried to intervene, he was dragged out of the room and he also met a similar fate. In her cross examination, she admits that as a result of the scuffle that occurred and when her husband tried to intervene, he was surrounded and attacked with sticks. The defence has tried to dent the credibility of this witness by putting suggestion to her that it was subsequently decided that names of the accused be stated before the police who came to record her statement the next day. 13. PW-8, Induben Raeesbhai, the wife of complainant also confirms the version as narrated by the complainant in his complaint and so in the testimony, her presence at the scene of the offence is confirmed, though in the cross examination at one stage a suggestion was put that she and her sister-in-law Hansaben had left the scene, she admits that when the incident happened she was in the kitchen and so was her sister-in-law. Shaniben PW-8 and Bhavsinhbhai PW-10 though not eye witnesses to the incident have sustained injuries as a result of being attacked by the accused when they were passing by immediately after the incident occurred. They had seen Radhaben's body lying. Having known Raees, they were also privy to the information that the motive behind the incident was the suspicion being harboured by the accused vis-a-vis the complainant's mother. 14. On a consolidated reading of the testimonies of these witnesses, what emerges is as under: (a) That the accused, seven in number, harboured a strong suspicion that the complainant's mother Radhaben was responsible for their brother Dinesh's death. There were even undercurrents of discontent in view of the pending land dispute between the accused and the complainant's family. The accused were uncles of the complainant. Obviously, therefore, there was a strong motive to carry out the act in question. (b) As is evident from the versions narrated in the complaint and so confirmed in the testimony of the complainant which also is substantiated by the version of other witnesses that the accused entered the house wielding sticks shouting "Kill, Kill" and had strong premeditation to see that Radhaben was done to death. Mukesh who tried to intervene also met a similar fate as a result of being attacked by the sticks. Mukesh who tried to intervene also met a similar fate as a result of being attacked by the sticks. (c) The medical evidence on record confirms that the death resulted as a result of the injuries sustained by the deceased due to the weapons that the accused wielded. (d) What needs to be noted is that when confronted with about 6 to 7 people attacking, there are bound to be minor discrepancies or variations in the versions that the witnesses may narrate regarding the incident particularly when this incident happened in a village, where the niceties were not known to these villagers. Such minor variations and contradictions in their versions would therefore not dent the credibility of these witnesses so as to create a doubt in the prosecution version. 15. Having tested the evidence on record independently and having found that the versions as narrated by the witnesses stand the test of credibility there is no reason why the accused be given benefit of doubt because there may be minor variations and contradictions in their statements. We, therefore, see no reason to entertain the present appeal and the same is required to be dismissed. 16. Accordingly, the appeal is hereby dismissed. The judgment and order dated 27.12.2011 passed by the Fourth Additional Sessions Judge, Vadodara in Sessions Case No. 156 of 2010 is confirmed. R & P to be transferred to the trial court forthwith. Appeal Dismissed.