Gujarat Chandubhai Malubhai Parmar & Ors Vs. Chandubhai Malubhai Parmar
& Ors State of Gujarat  INSC 394 (4 April 1997)
MUKHERJEE, S.P. KURDUKAR
APPEAL No. 354 OF 1987
belonging to Vankar community residing in village Golana in District Khera (Gujarat) had an awful day when they saw
some of their fellow Vankars being chased, four of them killed and many others
injured by a riotous mob comprising Rajputs, Harijans and other persons residing
in the same village. The incident in question took place on 25.1.1986.
The genesis of this incident was a dispute over a plot of land, which according
to the Vankar Community was allotted to it by the Government of Gujarat under a
scheme called allotment of plots to landless persons for construction of
houses. The Harijans, however carried the belief that part of the said plot was
given to and reserved for them by the Government for constructing their houses.
it was this misunderstanding between the two communities viz., the harijans and
Vankars which led to the incident in question . According to the prosecution,
on 25.1.1986 at about 8 a.m. the accused Nos. 1,2,3,5,39 and Lakhabhai
(deceased) had gone to this land with some construction materials for the
purposes of erecting poles and construction of huts thereon. These accused
persons initially requested the Vankars to desist from making unauthorised
construction but realising that Vankars were not agreeable, accused No.1 tried
to attack Itchabhai with a Dharia and while warding off the said attack he
sustained an injury between his thumb and finger. The above accused persons
thereafter left the place.
the complainant then decided to go to Khambat Police Station to lodge a complaint
and, therefore, they came to the bus stand along with injured Itchabhai.
hired a truck to go to Khambat Police Station. In the meantime many persons
belonging to Harijan and Rajput communities came to the bus stand, armed with
deadly weapons and started raising shouts "beat Vankars". it is
alleged by the prosecution that accused Nos. 19,20,21 were armed with guns.,
Accused No. 22 was carrying dharia and other accused persons were armed with
sticks, dantas, kodali etc. These accused persons thereafter pulled down the Vankars
who were sitting in the cabin of the lorry and started abusing them.
encircled the truck. The other Vankars who were sitting in the rear portion of
the truck, sensing a serious trouble, got down and started running towards their
locality called Vankarvas. The riotous mob then started chasing them. This
incident took place at about 9.30 a.m.
was alleged by the prosecution that in the meantime many residents of village Golana
belonging to the accused party armed with deadly weapons came in direction of Vankarvas
where these Vankars were running to their respective houses. The riotous mob
consisting of 100/150 persons started chasing Vankars, of them some entered
into the houses of Vankars. Accused Nos. 19, 20 and 21 who were members of the
riotous mob fired at Vankars as a result of which Prabhudas and Pochabhai
sustained gun shot injuries and died on the spot. Other members of the unlawful
assembly assaulted Mohanbhai and Khodabhai with sharp edged weapons and sticks
as a result of which they also died on the spot.
addition to these four deaths 13 persons belonging to Vankar community also
sustained injuries during the said assault.
The other members of the unlawful assembly who had forcibly entered into the
houses of Vankars had damaged their houses by throwing stones and committed
theft of their belongings and thereafter set the houses on fire in which the
inmates of these houses sustained injuries.
The prosecution then alleged that the three incidents at three different
places, namely, at Khalwat, at bus stand and at Vankarvas formed one
appears that a report of disturbance reached the Senior PSI of Khambat police
Station within a short time and, therefore, Shri Dhani, CPI arrived at village Golana
in the afternoon and went to Vankarvas where he recorded the complaint of Pochabhai
Kalabhai (Ex.203). CPI then returned to Khambat Police Station, registered the
offence and left for the place of occurrence at about 5.00 p.m. and commenced the investigation. He recorded the
statement of eye witnesses and also arrested the accused. The accused Nos. 1 to
4 and 39 belong to Harijan community. The accused No. 5 died during the pendency
of trial, A-10 is Kumbhar, A-11 to 17 are Vaghris, A-18 is Vala and remaining
27 accused persons are Rajputs. This is how all 41 accused persons came to be
arrested in the present crime. CPI Dhami submitted the charge-sheet against 41
accused persons in the Court of Judicial magistrate First Class. After about
three months he submitted a report to the Court and sought permission to add
charge under Section 3 of the Terrorist and Disruptive Activities (Prevention)
Act, 1985 (for short the `TADA') and the said prayer was granted. This was how
41 accused persons came to be charge sheeted for offences punishable under
sections 147,148,452,302,307,325,324,323,396,397,398,436,and 427/149 IPC, under
section 3 of TADA and also under Section 25(1)(c) of the Arms Act. The Criminal
case was then committed to the Designated Court of Kheda at Nadiad for trial.
The accused denied the accusations made against them and in their statements
recorded under Section 313 Cr.P.C they stated that they have been falsely
implicated in the present crime because of rivalry between the two groups viz.,
Vankars on one hand and the Rajputs, Harijans etc., etc., on the other hand.
They claimed that they were innocent and accordingly prayed that they be
The prosecution in support of its case examined a number of witnesses including
31 eye witnesses of whom 13 were injured. In addition to this evidence
prosecution also examined medical officers who performed the post mortem
examination on the dead bodies. Injury certificates of injured witnesses and
various panchnamas were also produced on record. The Learned Designated Court
on appraisal of oral and documentary evidence on record concluded that 18
arraigned accused along with many other unidentified persons belonging to the
rival group formed an unlawful assembly with a common object to assault Vankars
and in prosecution thereof two were shot dead and two sustained several incised
injuries and died on the spot; caused injuries to 13 eye witnesses; committed
theft of belongings of Vankaras and set three houses on fire. The learned trial
judge convicted and sentenced 14 accused persons/appellants before us on
various counts and sentenced them to undergo various terms of sentences and
fines including life imprisonment under section 302/149 IpC. Four accused
persons were convicted for minor offences who did not choose to file an appeal
and, therefore, details thereof are not set out. The trial court however, found
the evidence adduced by the prosecution was not sufficient to convict the
remaining 23 accused persons and accordingly recorded the order of acquittal in
their favour. All accused persons were also acquitted of charge under section 3
of TADA. The impugned order is dated 12.6.1987. It is this judgment and order
of conviction which is the subject matter of challenge in Criminal Appeal No.
95 of 1988 filed by the appellants - accused. The State of Gujarat has filed criminal Appeal No. 354
of 1987 against 18 accused persons challenging the order of acquittal. Since
these appeals arise out of a common judgment, they are being disposed of by
At the outset it may be stated that prosecution witnesses can be divided into
three groups, (1) witnesses to the incident at Khalwat, (2) witnesses relating
to the assault on Vankars at bus stand and (3) witnesses who testified to the
chasing of Vankers and causing assault on them with deadly weapons, committing
theft and setting the houses on fire.
Mr. T.U. Mehta, the learned Senior Counsel appearing in support of the criminal
appeal filed by the convicts urged that the prosecution story is not all
trustworthy. The prosecution evidence as to what happened at the bus stand was
totally untrustworthy inasmuch as the ocular evidence thereof was propped up by
the missionaries to gain favour from vankars. He urged that in fact the
missionaries had played a very vital role to support the prosecution case by
falsely implicating the appellants. he then urged that the identification of
the accused persons sought to be established in the court was totally
unreliable because it was impossible for any of the prosecution witnesses could
be accepted then at best each of the accused would be held liable for his
individual act. He urged that there was non unlawful assembly and even if there
was one, it did not share any common object to commit the murders of or assault
any of the Vankars. he further submitted that prosecution witnesses were
partisan witnesses and it was not safe to accept their evidence as credible. He
then submitted that it was not clear from the evidence of prosecution witnesses
as to who were the accused who chased the vankars and caused the death of four
persons and injured many. He therefore, urged that the conviction of original
accused Nos. 34 , 35 and 36 under sections 302/149 was unsustainable. The
conviction of the appellants under sections 309/149 of the Indian penal Code
was bad and at the most if identity of the assailants could be established vis-a-vis
their alleged acts they could be convicted for their own individual acts and
not with the aid of Section 149 of IPC.
Before we deal with the aforesaid submissions raised before us on behalf of the
appellants and determine the involvement and complicity of each of the
appellants in the present crime we may broadly indicate the substratum of the
prosecution case. Village Golana where the incident took place is mainly
consisted of Rajputs Harijans and Vankars.
present episode Rajputs, Harijans were on one side and Vankars on the other .
Initially a dispute arose over the allotment of the land to vankars for which
the harijans laid a claim under the belief that it was reserved and earmarked
for them. Some of the vankars had constructed the houses on this land which was
objected to by Harijans. On 25.1.1986 some of the Harijans went to the disputed
land and questioned the right of Vankars to carry on the construction of house
thereon. It was alleged by the prosecution that there was some altercation
between the two groups resulting into causing an injury to Itchabhai Lalbhai by
means of a dharia. Vankars came to the bus stand hired a truck to go to the
police station and lodge a complaint. They boarded the truck . In the meantime Harijans
had gone to the abadi and returned to the bus stand along with a few Rajputs
and other fellowmen. Some altercation took place between Pochabhai Kalabhai, Khorabhai,
Mittanbhai, Itchabhai Lalbhai, Kalabhai, Nathabhai, Premjibhai Shyambhai and
the Rajputs. Vankars Who were sitting in the truck got down and sensing a
danger to their lives at the hands of Rajputs who had gathered there, started
running towards Vankarvas where they were residing. In the meantime more than
100 persons belonging to Rajput Community and their supporters came at the bus
stand and chased the persons belonging to Vankar community. The members of the
riotous mob were armed with deadly weapons like fire arms, dharia, lathis etc.
Of them A-19, A-20 and A-21 were carrying the fire arms. The common object of
the riotous mob was to cause fatal injuries to persons belonging to Vankar
community, destroy the houses by fire and to commit robberies and create
terror. In pursuit of the said common object and while chasing these Vankars,
they assaulted Prabhudas, Pochabhai, khorabhai and Mohanbhai with deadly
weapons. Prabhubhai, Khorabhai and Mohanbhai with deadly weapons. Prabhubhai and
pochabhai sustained gun shot injuries and other injuries causing their
instantaneous deaths. Khodabhai and Mohanbhai were assaulted with deadly
weapons causing incised and lacerated wounds to them as result of which both
these brothers died on the spot. A-34, A-35 and A-36 entered and ransacked the
houses of Vinodbhai S/o Vallabhbhai, Balabhai s/o Rhulabhai and Vallabhbhai S/O
Phulabhai and thereafter burnt down their houses. Many prosecution witnesses
were injured in the incident. It may also be stated that as far as A-34, A-35
and A-36 are concerned the role attributed to them in the present incident was
mainly confined to ransacking and setting t he three houses of Vankars on ire
although they were also tried for various offences including four murders with
the aid of section 149 IPC being members of an unlawful assembly. There are 31
eye witnesses of them 13 were injured to which reference will be made little
later. It is on these allegations, the trial proceeded before the learned trial
judge against 41 accused persons and on appraisal of oral and documentary
evidence on record the trial court convicted 18 accused persons for various
offences of whom four were for minor offences who did not prefer any appeal
against their convictions and sentences. 14 appellants before us, stood
convicted by the impugned order for offences punishable under sections
302/149/34/147/148, 325/149,323/149 and 436/149 of the Indian Penal Code for
various terms of sentences. All sentences were ordered to run concurrently. 41 accused
persons were also put up for trial under section 3 of TADA but all were
acquitted by the trial court. The State of Gujarat has filed the appeal challenging the order of acquittal against
original accused Nos. 15 to 18, 19 to 22, 24 to 28 , 32 33 to 36 and 41. The
Judgment of the Designated
Court is dated
There is no serious challenge before us that Pochabhai, Prabhubhai, Khodabhai
and Mohanbhai met with homicidal deaths in an incident which took place on 25th January, 1986 at Vankarvas. All the four dead
bodies were found on the road. Dr. Sachdev (P.W.8) performed the autopsy on the
dead body of Pochabhai and the Post-mortem report is at Ex.162.
noticed as many as 27 external injuries on his person including five incised
wounds. There were also gun shot injuries and in all 99 pellets were removed
from the dead body. All these injuries were ante mortem and were sufficient in
the ordinary course of nature to cause death.
testified that Pochabhai died because of shock and profused bleeding.
Dr. Sachdev held the autopsy on the dead body of Prabhubhai @ Prabhudas and P.M
examination report is at EX.
Dr. Sachdev noted 12 external marks of injuries including three incised wounds,
three gun shot entry wounds and two gun's to exit wounds. One gun shot wound
was over right anterior lateral aspect in the lower part of the neck.
middle and lower lobes of right lungs were badely lacerated. This injury Dr. Sachdev
testified that must have been caused by fire arm from a very close range and
that this injury together with the resultant internal injury was sufficient in
the ordinary course of nature to cause the death. All these injuries were ante
mortem and the injured died because of shock and extensive bleeding.
Dr. Deven Desai (P.W.15) who performed the post mortem examination on the dead
body of Khodabhai found as many as 17 external marks of injuries on his person.
There was a stab injury on the back of forearm and an incised wound on upper
lip. There was fracture of lower part of the third right femur. He sustained a
fracture of left scapula and fracture of left 4th and 5th ribs resulting in
laceration of pleura. Dr. Desai testified that injuries mentioned in Column
No.17 in his report Ex.185 were correct.
further testified that Khodabhai died because of injuries caused to the vital
parts of the body which were sufficient in the ordinary course of nature To
cause death. All these injuries were ante mortem.
Dr. Sachdev held the autopsy (Ex.153) on the dead body of Mohanbhai and noted
four external injuries on his person.
was a contusion in the size of 15 cms. x 5 cms.
over posterior angles of 6th to 19th ribs By right side. The deceased had also
sustained a lacerated wound over lateral aspect, middle part of right thigh.
There were fractures of posterior angles of 6th, 7th, 8th and 9th ribs on the
right hand side. Dr. Desai stated that fractures of the ribs resulting in big
contusion over the right lung, middle and lower lobs and this fatal injury was
sufficient in the ordinary course of nature to cause death. All these injuries
were ante mortem.
After going through the medical evidence of both the doctors we are satisfied
that these four persons died unnatural deaths because of number of injuries
sustained by them during the incident question. We, therefore, see no
hesitation concluding that Pochabhai, Prabhubhai, Khodabhai and Mohanbhai met
with homicidal deaths.
The prosecution in order to prove the complicity of the appellants in the present
crime examined as many; as 31 witnesses of them had sustained injuries during
the incident in question. We may first deal with the prosecution evidence
relating to the complicity of the three accused, namely, Chandubhai (A-19), Jamubhai
(A-20) and Nathubhai (A-21). These three accused persons were said to have been
carrying the fire arms (guns) with them. Pochabhi Kalabhai (P.W.17) in his
evidence stated that when Pochabhai and Prabhubhai (since deceased) were
running towards Vankarvas, A-19, A-20 and A-21 along with the appellants and
other members of the unlawful assembly were chasing both the deceased fired at
them causing bleeding injuries and as a result thereof both of them fell down.
In the meantime the appellants and other members of the unlawful assembly
assaulted the deceased with spears and other lethal weapons and thereby caused
their instantaneous deaths. Pochabhai further deposed that Pratap Amarsen
(A-22), Amarsen Takhatasingh (A-24), Dhiru Mvubhai (A-25) Keharsingh (A-26), Amarsingh
Dipsingh (A-27), Ranchor Singh (A-28), Naathu (A- 32), Kalu (A-34) were having
sticks and the other accused were having sharp edged weapons. They all
assaulted Prabhubhai and Pochabhai with sticks and sharp edged weapons like Dharia
and swords. The witness has given minute details as to how both the deceased
were mercilessly assaulted by the appellants. This witness was searchingly
cross examined on behalf of the defence but we do not find any material to
discredit his evidence. The evidence of pochabhai is corroborated by host of
other eye witness, namely Icchalala (P.W.18) , Kala Latcha (P.W.19), Prema Punji
(P.W.20), Chika Raghav (P.W. 21),Ghelaganesh (P.W.25), Natahasewa (P.W.23), Rtna
punja (P.E.24), Leela Rewa (P.W.25) and Bhika Ganga (P.W.26). Their evidence in
substance is that A-29, A-20 and A-21 were chasing both the deceased and fired
through their guns and as a result of fire arm injuries they fell down.
these witnesses again pointedly referred to the presence of more than 100
persons from Golana Village belonging to Rajput, Harijan and other communities. All
these appellants hailed from the same village were personally known to them and
, therefore, there was no difficulty in identifying them. All these witnesses
have given the necessary particulars about the assault on the deceased persons
with the sticks and other deadly weapons.
(P.W.19), Bhikaganga (P.W.26), Leelarewa (P.W.25), Itchalala (P.W.18), Chika Raghav
(P.W.21) and Nathasewa (P.W.23) were the injured eye witnesses. Their injury
certificates area on record. The presence of these witnesses at the time of
incident, therefore, could not be doubted. Mr. T.U. Mehta, learned Senior
Counsel seriously challenged the evidence of these witnesses, firstly, on the
ground that they are partisan witnesses and have tried to rope in as many
persons as possible as accused from the Rajput , Harijan and other communities,
He further urged that all these witnesses deposed that the mob of more than 100
persons was chasing the deceased and other injured Vankars and if this be so
mistaken identity of the accused persons could not be ruled out. to support
this submission he urged that the trial court had acquitted a large number of
accused persons and, therefore, the appellants are also entitled for acquittal
and at any rate they are entitled for the benefit of doubt for want of proper
identification. We have very carefully gone through he evidence of these eye
witnesses and we find no substance in any of these contentions. It cannot be
ignored that the occurrence in question took place during day time and in fact
the appellants were chasing the deceased and other injured persons right from
the Golana bus stand till they reached Vankarvas where two persons were shot
down and two were assaulted with sharp edged and other with lethal weapons.
witnesses in our opinion had sufficient opportunity to identify the appellants
and they were also known to them.
careful perusal of oral and documentary evidence on record we are of the
considered view that the prosecution had successfully established the guilt of
the appellants for which they were tried and convicted by the trial court.
is enough material on record to show that the appellants came together with
lethal weapons, started giving slogans and abusing Vankars and also chased them
until 4 Vankars fell down on the ground dead and many others were injured.
Since the evidence of these eye witnesses is identical in all material
particulars we do not think it necessary to reproduce the same. Mr. Mehta,
learned counsel for the appellants inspite of his strenuous efforts was unable
to persuade us to reject the evidence of any of the witnesses for any
sustainable reason. We, therefore, do not see any error in the judgment and
order of conviction passed by the trial court in respect of
A-19,A-20,A-21,A-22,A-24,A- 25,A-26,A-27,A-28,A-32,and A-41. we accordingly
uphold the order of convictions and sentence of these appellants/accused passed
by the trial court.
Coming to the appeal of Kalabhai (A-34), Kesharbhai (A-35) and Karsanbhai
(A-36) who were also convicted along with the appellants for the offences
punishable under sections 147,148,302/149 of the IPC we are of the opinion that
their case in view of the evidence of the eye-witnesses, stands on a different
These three accused persons were alleged to have ransacked and set on fire the
houses of Vinodbhai, Vallabhbhai and Balabhai. The prosecution in this behalf
led the evidence of Nathabhai (P.W.23), Vithalbhai(P.W.41), Narsinghbhai (P.W.43),
Balubhai (P.W.44) and Manibhai (P.W.47).Vithalbhai (P.W.41) in his evidence has
stated that he was sitting at his house at the time of incident which took
place in the Vankaravas. He saw some persons belonging to his community were
coming towards Vankarvas from the side of bus stand. A mob consisting of
100-150 persons of Rajput, Harijan and other communities was chasing Vankars.
He further stated that he identified A-34, A-35 and A-36 as they belonged to
the same village. When he saw them coming to his house he closed the shutters
of his door and stayed inside the house. These accused persons and other
members of the riotous mob went towards the house of Vinodbhai. They were
raising slogans "burn dhedwada." when he came out of his house he saw
A-34, A-35, and A-36 were setting the house of Vinobhai on fire. At that time
no other member of the riotous mob was present at that place. He, however
admitted that he did not see A-34, A-35 and A-36 had set on fire the houses of Vallabhbhai
and Balabhai. The houses of Vallabhai and Vinodbhai were adjacent to the house
of Vinodbhai and it appears that they also caught fire. This witness was again
searchingly cross examined by the defence but no material could be brought out
on record to discredit his evidence.
evidence of this witness finds corroboration from the evidence of Nothibhai
(P.W.23), Narsinghbhai (P.W.43), Balubhai (P.W.44), and Naniben (P.W.47). All
these witnesses have consistently stated that A-34, A-35 and A-36 had seton
fire the house of Vinodbhai. All these witnesses further stated that when these
three accused were setting the house of Vinodbhai on fire they heard the sound
of gunshot coming from the nearby place. It was not the claim of any of these
witnesses that either of these three accused persons had used the fire arm
and/or caused assault on the deceased persons.
it is no doubt true that these eye witnesses had deposed that A-34, A-35 and
A-36 were members of the unlawful assembly/riotous mob which was chasing the
deceased and the other injured persons of the Vankar community from the bus
stand until they reached Vankarvas but when the mob came near the house of Vinodbhai
and thereafter set his house on fire and other members of the riotous mob
continued to chase Vankars and thereafter they heard the firing sounds coming
from that direction. The question that needs to be answered on these proved
facts is as to whether A-34, A-35 and A-36 could be said to have shared the
common object of committing murders with A-19, A-20 and A-21 who fired from
their fire arms killing Prabhudas and Pochabhai as also other appellants who
caused an assault on Khodabhai and Mohanbhai with the deadly weapons as a
result of which they also died on the spot. On the evidence on record, we find,
it cannot be said to be conclusively established that A-34, A-35 and A-36 also
shared the common object to commit the above murders of four persons. The time
factor in this behalf assumes great importance because when A-34, A-35 and A-36
were engaged in setting the house of Vinodbhai on fire the other appellants
committed the murders of four persons by using fire arms and other deadly
weapons. The trial court convicted A-34, A-35 and A-36 for committing the
murders of Prabhubhai, Pochabhai, Khodabhai and Mohanbhai with the aid of both
Sections 149/34 IPC. On the proved facts we are, however, unable to affirm the
conviction of A-34, A-35 and A-36 for the above murders either with the aid of
Section 149 or section 34 IPC but their conviction and sentence under Section
436/34 IPC must stand confirmed. It is no Doubt true that these three accused
persons while chasing Vankars caused injuries to various persons of the Vankar
community for which they have been rightly convicted and sentenced by the trial
court under sections 324/149 and 325/149 IPC. The appellants being the members
of an unlawful assembly committed the offence of rioting and have been rightly
convicted under sections 147 and 148 of the IPC. In view of our final analysis
of the material on record we are of the considered view that the conviction and
sentence of A-34, A-35 and A-36 cannot be sustained under section 302/149 of
the IPC and consequently it is set aside, however their conviction and sentence
for the other offences are confirmed.
As regards Criminal Appeal No. 354 of 1987 filed by the State Challenging the
order of acquittal passed by the trial court in respect of 18 accused persons,
we are of the considered opinion that the view taken by the trial court in
acquitting them does not suffer from any infirmity and they have been rightly
acquitted by the trial court.
For the aforesaid conclusions the convictions and sentences of Chandubhai Malubhai
Parmar (A-19), Jamubhai Gordhanbhai Dodiya (A-20), Nathubhai Pratpsingh alias prabhatbhai
Parmar (A-21), Pratapsang Amarsang Parmar (A- 22), Amarsang Takhubhai alias Takhatsingh
Parmar (A-24), Dhirubhai Mavubhai Parmar(A-25), Bahadurbhai alias Keharsing Nathubhai
Parmar (A-26), Amarsang Dipsang alias Dipubhai Paramar (A-27) and Ranchodbhai Rambhai
Parmer (A-28), Nathubhai Rambhai Parmer (A-32) and Ganubhai alias Abhesing Mavubhai
Parmar (A-41) awarded by the trial court on various counts are sustained and
their appeal to stand dismissed.
conviction and sentence of A-34, A-35 and A-36 under sections 302/149 or 34 of
the IPC is quashed and set aside and they are acquitted of this charge, however
their conviction and sentence under section 436/34 IPc is uphold.
convictions and sentences passed by the trial court against A-34, A-35 and A-36
on other counts are confirmed.
The appellants who are on bail shall surrender to their bail bonds to serve out
the remaining part of their respective sentences. Criminal Appeal No. 95/88 is
partly allowed as indicated above. Criminal Appeal No. 354/87 to stand dismissed.