Jashubha
Bharatsingh Gohil Vs. State of Gujarat [1994]
INSC 238 (13 April 1994)
Anand,
A.S. (J) Anand, A.S. (J) Reddy, K. Jayachandra (J)
CITATION:
1994 SCC (4) 353 JT 1994 (3) 250 1994 SCALE (2)534
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by DR ANAND, J.-Twelve persons namely, Bharatsinh
Patubha Gohil, Dhruvansinh Bharatsinh Gohil, Antruddhsinh Bharatsinh Gohil, Jodha
Khoda Rabari, Bhikhubha Shivubha Gohil, Bhupatsinh Bahadursinh Gohil, Kuvarsinh
Ajitsinh Gohil, Nirubha, Ajitsinh, Baldevsinh alias Bablubha Sajubha Gohil, Jashubha
Bharatsinh Gohil and Mohansinh alias Nathabhai Ranchhodbhai Thaker alias Selanki
alias Parma were tried for offences punishable under Section 120-B read with
Sections 302, 307, 148 IPC read with Section 149, Section 143 and in the
alternative under Sections 302, 307/34 IPC and Section 25-A of the Arms Act by
the learned Sessions Judge, Bhavnagar. (For the sake of convenience and brevity
we shall refer to the number of the accused, A-1 to A-12, in the same order in
which their names appear in the trial court.)
2. The
trial court found that all the accused, as members of an unlawful assembly,
under the leadership of accused 11 were responsible for the death of deceased Diwaliben.
It also held all the accused as members of unlawful assembly were responsible
for the death of Jaram Bhagvan and Odhavji Bhagvan. In the opinion of the trial
court, accused 11 was also responsible for the death of deceased Purshottam Jaga
and Popat Lakha. Further, accused 1, 5, 7, 8, 9, 10, II and 12 with active part
played by accused 3, 10, 11 and 12 were held responsible for the death of Gordhan
Lakha. Accused 1, 2, 5 7, 8, 9, 10, 11 and 12 with active part played by
accused 5, 8, 11 and 12 were also held responsible for the death of deceased Babu
Bacher. The learned Sessions Judge also held guilty all the members of unlawful
assembly, with an active part played by accused II, for the death of Madhu Khoda
and Nagji Khoda. With regard to injuries caused to Pragji Mavji, all the
accused were held guilty for an offence under Section 324 IPC. The trial court
observed that with regard to the injury caused to Madhu Naran all the accused
were guilty of the offence under Sections 307/149 IPC and with regard to injury
caused to Purshottam Mulji all the accused were held responsible for the
offence under Sections 307/149 IPC. The learned Sessions Judge also found that Dhanji
Bhagvan had been caused injuries by all the accused and therefore they were
guilty of an offence under Sections 307/149 IPC. They were all sentenced to
undergo life imprisonment for the offence under Section 302 IPC and Sections
302/149 IPC. No separate sentence was, however, imposed for the offence under
Section 120-B IPC. A-1, A-2, A-5, A-8, A-9, A-11 and A-12 were also sentenced to
suffer rigorous imprisonment of 3 years and to pay a fine of Rs 1000 each or in
default to further undergo rigorous imprisonment for six months for the offence
under Section 25-A of the Indian Arms Act. All the substantive sentences were
directed to run concurrently. The accused filed an appeal in the High Court and
the State also filed an appeal seeking enhancement of the sentence of life
imprisonment to death sentence, since the accused had been found guilty of
committing as many as 10 murders. The High Court acquitted A-4. Accepting the
State appeal in part, it awarded the sentence of death to A-11, Jashubha only.
The High Court confirmed the conviction and 356 sentence of life imprisonment
on rest of the accused.
Conviction
and sentence for other offences was also maintained. The accused have, by
special leave, filed this appeal challenging their convictions and sentences.
There is, however, no appeal filed on behalf of A-10, who has since been
absconding.
3.The
prosecution case is as follows. Villages Mangadh and Chomaland are separated
only by a boundary of earth embankment. In 1980 some Patels of Village Mangadh
committed the murder of 3 Darbars namely, Bhimdevsinh Ajitsinh, son of A-9, Khengarbha
Chandubha and Sajubha Patubha, brothers of A-1. Nine Patels of Village Mangadh
were tried for the said offence but acquitted. Enmity and hostilities between
the two factions continued.
4.On 20-9-1984 the appellants herein with a view to wreak the
vengeance of the said incident hatched a conspiracy to assault the complainant
party. It so happened that Gomtiben, the aunt of the complainant, died in
Village Manvilas and the news of her death was received at Village Mangadh also
where the parents of the deceased Gomtiben resided. As is customary, the
villagers of Mangadh decided that they would take bath at the well situated
outside the village and thereafter go to Manvilas the next day to offer
condolences. One tractor along with a trailer was arranged for transportation
of the villagers on 20-9-1984. Twelve males along with some 12-13
females went in the tractor and trailer to Village Manvilas to offer
condolences. Taking advantage of this situation, appellants herein, along with
A-10 and the acquitted accused A-4, formed an unlawful assembly and lay in
wait, armed with deadly weapons like gun, spear, axe and dharlya, for the
tractor and the trailer to return from Manvilas. They concealed themselves
behind the hedge separating the row near the Vadi of Koli Devji situated on the
pathway between Manvilas and Mangadh. As soon as the tractor came on the road
near the Vadi, A-11 came on the road and fired from his gun thereby deflating
the tyre of the tractor and brought the same to a halt. In the meanwhile, the
remaining accused persons also came out from behind the hedge and assaulted
those who were sitting in the tractor. Gunshots were fired and some of the
persons sitting in the tractor and trailer were injured. When some of the
villagers tried to run away, after jumping from the tractor, they were chased
and beaten up by members belonging to the accused party. As a result of the
gunshots a number of persons received injuries and one of them, Diwaliben, died
in the tractor. The accused then returned to the village and went towards
southern outskirt of the village, where again shots were fired by them at the
persons working in different fields as well as on those who were returning on
their carts from the fields. A number of persons were killed. Pragji Mavji, Purshottam
and Dhanji received gunshot injuries. Odhavji Bhagvan and Jaram Bhagvan were
chased and killed by the accused party. Ganesh who was also injured by the
gunshot lay there in an injured condition but died on the way to the hospital.
The accused also fired at the residential place of Purshottam when he was
unloading stones from the cart and he also died on the spot. Popat Lakha, 357 Goverdhan
Lakha and Babu Bacher were shot dead by the accused party while they were
returning from their fields.
Nagji Khoda
and his associate Madhu Khoda were injured by gunshots and out of them Nagji
died on the spot while Madhu Khoda succumbed to his injuries in the hospital. Madhu
Naran succeeded in running away after receiving some injuries during the
incident and got medical aid in the hospital at Gariadhar. While he was in the
hospital, some of the injured persons were brought to the same hospital while
some others had been sent to Bhavnagar Government Hospital and thereafter to Ahmedabad for treatment. Madhu Naran
filed the complaint on the same day which forms the basis of the first
information report and the investigation was taken in hand.
5.The
prosecution led evidence in the case to show that a short time prior to the
incident in question an assault had taken place on Purshottam Pragji in which
A-8, A- 11 and A- 12 out of the present appellants along with the son of A-9
and the brother of A-7 were tried and convicted. Their appeal was pending
against the conviction and sentence in the High Court, when the occurrence in
this case look place on 20-9-1984.
6.That
all the deceased in the case died as a result of the assault on them by
firearms and other weapons has not been disputed before us and we are,
therefore, not obliged to refer either to the postmortem reports, medical
evidence or the other evidence including the evidence of the expert with regard
to the use of firearms. Learned counsel for the appellant, Shri Mehta however
submitted that the evidence on the record does not prove the case against A-2,
A-3, A-6 and A-10 beyond a reasonable doubt and that the sentence of death
awarded to A- 11 was also not justified since the trial court had sentenced him
to suffer imprisonment for life, keeping in view all the facts and
circumstances of the case. Learned counsel, however, was unable to point out
any material on the record from which the substratum of the prosecution case
could be doubted insofar as the complicity of the remaining accused persons are
concerned. He drew our attention to some parts of the evidence led by the
prosecution to draw a distinction between the cases of A-2, A-3, A-8 and A-10
on the one hand and the remaining accused on the other. The prosecution
evidence, in our opinion, is clear, cogent and specific insofar as the
involvement of accused other than A-2, A-3, A-6 and A- IO are concerned, whose
cases we shall deal with a little later. Learned counsel for the appellants has
been unable to point out any cogent reasons for not agreeing with the trial
court and the High Court as regards the guilt of the remaining accused.
It
has, however, been argued that the enhancement of sentence to death in the case
of A- 11 was not justified.
The
appreciation of evidence by the courts below has impressed us and we agree with
the reasoning and the conclusions arrived at by both the courts below as
regards the guilt of the appellants other than A-2, A-3, A-6 and A- 10 and find
that the same has been successfully brought home. However, before considering
whether the High Court- was justified in enhancing the
sentence of life imprisonment to death in the case of A- 11, Jashubha, we
propose to deal with the case of A-2, A-3, A-6 and A-10.
358
7.The
learned Sessions Judge as well as the High Court rightly treated the complaint
made by Pragji at the police chowky, as the first information report in the
case, on the basis of which investigation commenced and a copy of which had
also been forwarded to the Court. A perusal of the said report shows that
accused A- 1, A-5, A-7, A-8, A-9, A- 11 and A- 12 have been specifically named
as the assailants.
It is
also specifically stated in the said report that out of them four of the
accused were armed with firearms and that the incident took place between 9.30 a.m. and 10.00 a.m. It
is nobody's case and indeed in fairness to learned counsel for the State, it
must be recorded that he also did not dispute that the complainant knew A-2,
A-3, A-6 and A- 10, as well as he knew the other accused persons. The
complainant, Pragji PW 16 being an injured witness himself is a stamped witness
and it is significant that he did not name A-2, A-3, A-6 and A-10 as members of
the accused party in the first information report, lodged soon after the
occurrence. It is also relevant in this connection to bear in mind that in his
statement recorded by PW 1 1, Shri Mehta, Executive Magistrate, Pragji PW 16
again did not name A-2, A-3, A-6 and A-10 as having taken any part in the
assault. Of course, in the statement the complainant had stated that there were
four other persons also but since, the names of all the other accused were
mentioned in the report, one fails to understand as to what prevented the names
of A-2, A-3, A-6 and A-10 to be also given by the complainant in his report. At
the trial, of course, an effort was made to implicate these four accused also
but then we cannot lose sight of the fact that the tendency to rope in some
innocent persons along with the guilty ones is not new. It appears that due to
the enmity, which is admitted between the parties and the past hostilities, the
names of A-2, A-3, A-6 and A-10 were sought to be introduced in the prosecution
case at a later stage, after thoughtful deliberations, and the case was then
developed so as to implicate them also. None of the witnesses produced by the
prosecution has been able to ascribe any particular role to A-2, A-3, A-6 and
A-10. The mention of the expression "4 others" by the complainant
shows that he had designedly left a margin to add to the number of the accused
later on after deliberations and consultations. The evidence of Pragji as well
as the other prosecution witnesses, particularly Madhu Naran PW 17, shows that
the prosecution has made a concerted effort to improve upon its case and
implicate A-2, A-3, A-6 and A-10 along with the other accused persons later on.
In this connection, it requires to be noticed that a careful analysis of the
testimony of the 3rd eyewitness, Purshottam Mulji PW 18, also creates an
impression on our minds that while dealing with the two parts of the incident,
one at the tractor-trolley and the other in the village, the role played by
A-2, A-3, A-6 and A-10 has not been clearly brought out by him either. Our
careful appraisal and independent analysis of the evidence on the record,
coupled with the glaring omission in the first information report and the
statement of Pragji recorded by the Executive Magistrate PW 11, for which
omission the prosecution explanation deserves a mention only to be rejected,
has created an impression on our minds that the prosecution has failed to prove
the case 359 against A-2, A-3, A-6 and A-10 beyond a reasonable doubt and that
the possibility that they have been implicated along with other accused persons
on account of their relationship and association with the other accused persons
cannot be ruled out. The trial court as well as the High Court, in our view,
fell in error in not distinguishing their cases and in convicting and
sentencing them also along with the other accused persons. These four
appellants namely, A-2, A-3, A-6 and A-10, therefore, deserve to be given the
benefit of the doubt and acquitted. We may hasten to add that A- IO has not
filed any appeal in this Court but since the infirmities which attach to the
cases of A-2, A-3 and A- 6 are the same which attach to his case also, we
cannot deny the benefit of our judgment to him also only because he has not filed
any appeal against his conviction and sentence before us. We give him the
benefit of the doubt also and set aside his conviction and sentence in the same
manner as we set aside the conviction and sentence of A-2, A-3 and A-6 by
giving them the benefit of the doubt.
8.So
far as the remaining accused are concerned, the prosecution evidence is clear
and cogent. The eyewitness account is specific. Despite lengthy
cross-examination of the eyewitnesses nothing has been brought out on the
record to create any doubt about the creditworthiness of the testimony of any
of the prosecution witnesses. The recoveries made from them, pursuant to the
disclosure statements, which have not been doubted before us coupled with the
medical evidence shows that the prosecution has established its case against
them beyond every reasonable doubt. We agree with the reasoning and findings of
the trial court as well as the High Court and upheld the conviction of A- 1,
A-5, A-7, A-8, A-9, A- 11 and A- 1 2 insofar as the offences under Sections
302/149 IPC and other offences are concerned. Since, the High Court itself did
not grant the appeal of the State for enhancing the sentence of life
imprisonment in the case of A-8 and A- 12, we need not detain ourselves to deal
with their case and it would suffice to record that we agree with the High
Court that the sentence of life imprisonment on A-8 and A-12, did not call for
any enhancement.
9.We
shall now come to the case of A- 11, who has been sentenced to death by the
High Court by partially accepting the State's appeal.
10.Indeed
10 murders had taken place in broad daylight.
The
conscience of the State appears to have been shaken when it found that the
trial court had sentenced all the accused only to life imprisonment. The State
considering the gravity of the crime in which 10 innocent persons had lost
their lives approached the High Court for enhancing the sentence of A-8, A- 11
and A- 1 2 and the High Court enhanced it in the case of A- 11 only. As already
noticed, it was A- 11, Jashubha, who first emerged on the scene and fired from
his gun and deflated the tyre of the tractor.
After
the tractor came to a halt, it was he again who fired the second shot on the
passengers which caused injuries to some others including Diwaliben who died. Jashubha
A-11, according to the prosecution, fired yet another shot from his gun which
hit Dhanji Bhagvan. The other shots fired by him could not be linked
specifically to the injuries to any of the deceased or injured. The manner in
360 which the murders were committed indeed exposes its gravity.
Undoubtedly,
the assault was made by the accused party led by A- 11 on unarmed and innocent
persons, who were returning after offering condolences on the death of Gomtiben.
That there was previous enmity between the parties certainly did not justify
the manner in which A- 11 and his companions acted and went on a killing spree.
The trial court which had the benefit of examining the demeanour of the
witnesses chose not to inflict the extreme penalty of death on any of the
accused persons and instead sentenced all the accused to life imprisonment by
its judgment dated 14-12-1987. The High Court enhanced the
sentence of A- 11, vide its judgment dated 6-3-1992.
11.
Learned counsel for the State has pleaded for upholding the sentence of death
on A- 11 while Mr Mehta, learned Senior Advocate appearing for the appellant Jashubha
A- 11 has pleaded that the sentence of death be not confirmed on him.
12.It
is needless for us to go into the principles laid down by this Court regarding
the enhancement of sentence as also about the award of sentence of death, as
the law on both these subjects is now well settled. There is undoubtedly power
of enhancement available with the High Court which, however, has to be
sparingly exercised. No hard and fast rule can be laid down as to in which case
the High Court may enhance the sentence from life imprisonment to death. Each
case depends on its own facts and on a variety of factors. The courts are
constantly faced with the situation where they are required to answer to new
challenges and would the sentencing system to meet those challenges. Protection
of society and deterring the criminal is the avowed object of law and that is
required to be achieved by imposing appropriate sentence. The change in the
legislative intendment relating to award of capital punishment notwithstanding,
the opposition by the protagonist of abolition of capital sentence, shows that
it is expected of the courts to so operate the sentencing system as to impose
such sentence which reflects the social conscience of the society. The
sentencing process has to be stern where it should be.
13.There
are however certain basic principles which this Court has laid down in Bachan
Singh case' for imposition of death sentence in "rarest of rare"
cases and we need not repeat those principles.
14.Section
354(3) of the Code of Criminal Procedure, 1973, as amended, makes it obligatory
in cases of conviction for offences punishable with death or with imprisonment
for life to assign reasons In support of the sentence awarded to the convict
and further ordains that in case the Judge awards death penalty, "special
reasons" for such sentence shall be stated in the judgment. Thus, the
Judge is under a legal obligation to explain his choice of the sentence. The
legislature in its supreme wisdom thought that in some "rare cases"
for "special reasons" to be recorded it will be necessary to impose
the extreme penalty of death to deter others and to protect the society and in
a given case even the sovereignty and security of the State or country.
1 Bachan
Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri)
580: AIR 1980 SC 898 361 it, however, left the choice of sentence to the
judiciary with the rider that the court may impose the extreme punishment of
death for "special reasons". The sentencing court has, therefore, to
approach the question seriously and make an endeavour to see that all the
relevant facts and circumstances bearing on the question of sentence are
brought on record. It is only after giving due weight to the mitigating as well
as the aggravating circumstances, that it must proceed to impose the
appropriate sentence.
15.In
the instant case, the trial court dealt with the question of sentence
elaborately from paragraphs 83 to 92 of the judgment and after referring to
statutory provisions and taking note of the legislative change which has since
been brought about by Section 354(3) CrPC and some judicial pronouncements,
came to the conclusion that the sentence of imprisonment for life would meet
the ends of justice.
Therefore,
the trial court did not merely, by a cursory order, impose the sentence of life
imprisonment and used its discretion not to award the capital sentence of death
for detailed reasons recorded by it. The reasons given by the trial court
cannot be said to be wholly unsatisfactory or irrelevant much less perverse.
The High Court differed with the reasoning of the trial court and almost 5
years after the judgment had been pronounced by the trial court proceeded to
enhance the sentence of A- 11 from life imprisonment to that of death sentence.
The High Court also gave its own reasons in support of its view on the question
of sentence. The High Court, however, did not opine that the reasons given by
the Sessions Judge were perverse or so unreasonable as no court could have
advanced the same. It took a different view of the legislative policy as also
of the law laid down by this Court and referred to some other judgments of this
Court also in support of its "reasons" to impose the sentence of
death. The view taken by the High Court, it can legitimately be said is also a
possible view.
16.We
have given our anxious consideration to the reasons advanced by the trial court
for not choosing to impose the death sentence as also those given by the High
Court for enhancing the sentence of life imprisonment to that of death on A-
11, Jashubha.
17.Prior
to the incorporation of Section 354(3) CrPC in 1973 when the imposition of
death sentence was almost the rule and imposition of life imprisonment required
the trying judge to give reasons, this Court was faced with almost a similar
situation as in the present case. In Dalip Singh v. State of Punjab2, this
Court dealt with the subject, thus:
(AIR
pp. 367- 68, para 39) "On the question of sentence, it would have been
necessary for us to interfere in any event because a question of principle is
involved. In a case of murder the death sentence should ordinarily be imposed
unless the trying judge for reasons which should normally be recorded considers
it proper to award the lesser penalty. But the discretion is his and if he
gives reasons on which a judicial mind could properly found an appellate court
should not interfere. The power to enhance a sentence 2 1954 SCR 145: AIR 1953
SC 364: 1953 Cri LJ 1465 362 from transportation to death should very rarely be
exercised and only for the strongest possible reasons. It is not enough for an
appellate court to say, or think, that if left to itself it would have awarded
the greater penalty because the discretion does not belong to the appellate
court but to the trial Judge and the only ground on which an appellate court
can interfere is that the discretion has been improperly exercised, as for
example where no reasons are given and none can be inferred from the
circumstances of the case, or where the facts are so gross that no normal
judicial mind would have awarded the lesser penalty." (emphasis ours)
18.In view of the legislative amendment noticed above, the present case stands
on a better footing than Dalip Singh case2. Keeping in view the guideline in Dalip
Singh case2 we are of the opinion that in the peculiar facts and circumstances
of this case, when the occurrence took place almost 10 years ago and for the
last more than 6 years the spectre of death has been hanging over the head of
A- 11, Jashubha, the High Court should not have enhanced the sentence from life
imprisonment to death because for exercising its discretion in choosing the
sentence the trial court had given elaborate reasons which it cannot be said no
judicial mind could advance. Only because the High Court looked at those
reasons differently, in our opinion, it did not justify the enhancement of
sentence to death sentence.
We,
therefore, commute the sentence of death imposed upon A- 11 by the High Court
to that of imprisonment for life and restore the sentence as was imposed by the
Sessions Judge.
19.Thus,
in view of the above discussion, the appeals of A-2, A-3 and A-6 areallowed and
their conviction and sentence are set aside. A-10 shall also beentitled to the
benefit given to A-2, A-3 and A-6 and his conviction and sentence are also set
aside. The appeal of A- 11 is allowed to the extent that while maintaining his
conviction the sentence of death imposed upon him is commuted to the sentence
of life imprisonment. In all other respects, his appeal fails and is dismissed
and his conviction and sentence for other offences maintained. Appeals of the
remaining accused A-1, A-5, A-7, A-8, A-9 and A-12 are dismissed and their conviction
and sentences are maintained.
20.A-2,
A-3, A-6 shall be set at liberty forthwith if not required in any other case.
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