http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: STATE OF GUJARAT CHANDUBHAI MALUBHAI PARMAR & ORS.

       Vs.

RESPONDENT: CHANDUBHAI MALUBHAI PARMAR & ORS.  STATE OF GUJARAT

DATE OF JUDGMENT:       04/04/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: WITH CRIMINAL APPEAL No. 354 OF 1987                       J U D G M E N T S.P. KURDUKAR, J.      People  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. (2)  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. (3)  Pochabhai,  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. They 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

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. They 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. (4)  It 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. In addition  to these  four deaths  13 persons  belonging to Vankar community  also sustained  injuries during  the  said assault. (5)  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. (6)  The prosecution  then alleged  that the three incidents at three  different places, namely, at Khalwat, at bus stand and at Vankarvas formed one transaction. (7)  It 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. (8)  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 acquitted. (9)  The prosecution  in support  of  its  case  examined  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

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 this Judgment. (10) 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. (11) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

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. (12) 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. In the  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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

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 12.6.1987. 13.  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. He 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. Dr. Sachdev  testified that  Pochabhai died because of shock and profused bleeding. (14) Dr. Sachdev  held the  autopsy  on  the  dead  body  of Prabhubhai @  Prabhudas and P.M examination report is at EX. 161.  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. The 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.  (15)     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. He 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. (16) Dr. Sachdev  held the autopsy (Ex.153) on the dead body of Mohanbhai and noted four external injuries on his person. There was  a contusion  in the  size of  15 cms.  x  5  cms. extending 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. 17.  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

hesitation concluding  that Pochabhai, Prabhubhai, Khodabhai and Mohanbhai met with homicidal deaths. (18) 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. All 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. (19)  Kalaitcha  (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

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. The witnesses  in our  opinion had sufficient opportunity to identify the  appellants and  they were  also known to them. After 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. There  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. (20)      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 footing. (21)      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. The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

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. (22)      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. (23) 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. (24) 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

The 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. The convictions  and sentences  passed by  the  trial  court against A-34, A-35 and A-36 on other counts are confirmed. (25)      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.