Gujarat High Court
Bhurabhai Kalubhai Baraiya vs State Of Gujarat on 19 June, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
R/CR.A/516/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 516 of 2012
With
R/CRIMINAL APPEAL NO. 870 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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BHURABHAI KALUBHAI BARAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VIPUL SUNDESHA, ADVOCATE for the Appellant
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 19/06/2018
ORAL JUDGMENT
Page 1 of 74
R/CR.A/516/2012 JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Criminal Appeal No.516 of 2012 has been filed by the appellant - Bharatbhai Kalubhai Baraiya challenging the judgment and order of conviction and sentence dated 30.3.2012 passed by the learned Second Additional Sessions Judge, Rajula in Sessions Case No.8 of 2011 (Old Sessions Case No.11 of 2007), whereas Criminal Appeal No.870 of 2012 has been filed by the State of Gujarat challenging the acquittal of the respondents, viz., Kalubhai Lunabhai Baraiya, Savjibhai Kalubhai Baraiya, Navin alias Naval Rambhai Baraiya, Rambhai Lunabhai Baraiya, Jivrajbhai Rambhai Baraiya and Bachubhai Rambhai Baraiya.
2. Since both these appeals arise out of a common judgment and order and the evidence is also common, the same were taken up for hearing together and are decided by a common judgment.
3. A first information report came to be lodged on 13.7.2006 at the 'A' Division Police Station, Bhavnagar by one Bharatbhai Merubhai Gujaria, stating that they had a transport office near Ramapir Temple and he and his father used to sit at the office. On 12.7.2006, at about 4:30 to 5:00 in the evening, he and his father Merubhai Bijalbhai and his paternal uncle Bhagwanbhai Chitharbhai were present at their transport office, at that time, Bhurabhai Kalubhai Baraiya, Savabhai Kalubhai Baraiya, Jivrajbhai Rambhai Baraiya, Bachubhai Rambhai, Navalbhai Rambhai Baraiya and Rambhai Lunabhai Baraiya of their village as well as Kalubhai Lunabhai Baraiya, came near their office, and Bhurabhai had a stick in his hand and the others Page 2 of 74 R/CR.A/516/2012 JUDGMENT also had sticks in their hands with which, without saying anything, they indiscriminately rained blows on Rameshbhai's body and over and above that all those persons were beating him and upon his father intervening, all those persons went away and Ramesh had sustained blunt (mundhmar) injuries.
3.1 Half an hour later, all these persons returned to their office wherein Bhurabhai had a knife in his hand, Savabhai had a dharia in his hand, Bachubhai had a sword in his hand, Jivrajbhai had a stick in his hand and all these persons armed with weapons formed an unlawful assembly and Bhurabhai Kalubhai had inflicted a blow with a knife on his father's stomach and upon his father falling down, and Bhagwanbhai was at a distance from the office where Bhurabhai, Savabhai, Jivrajbhai, Rambhai, Bachubhai and Navalbhai took the weapons and caused injury to Bhagwanbhai on his back with a sword and dharia and at that time, there being commotion and a scuffle, Rambhai Shravanbhai Shiyal of their village and other persons having gathered there, the people from the opposite party being headstrong, no one intervened and in the scuffle, he too had sustained blunt injuries and his father Merubhai and Bhagwanbhai having sustained grievous injuries and fallen down, these persons went away from there.
3.2 Thereafter, his father and Bhagwanbhai having sustained grievous injuries, he and Rameshbhai Malabhai, Babubhai Bijalbhai, Narshibhai Bholabhai, Malabhai Chitharbhai, etc., took them from Khera village in Jesalbhai's rickshaw to the Mahuva Government Hospital for treatment and after availing primary treatment, they were taken for further treatment to Page 3 of 74 R/CR.A/516/2012 JUDGMENT the Bhavnagar Government Hospital, where they were admitted in Ward No.7. His father having sustained grievous injuries on his stomach was taken for surgery, and Bhagwanbhai had also sustained grievous injuries.
3.3 The motive behind this incident was that Rameshbhai Malabhai was the driver of the rickshaw and they wanted to take him away and in the last elections, his (the informant's) father had been elected as a Member of the District Panchayat from the B.J.P. and the opposite side belonging to the Congress had lost, and, therefore, keeping a grudge and enmity, they had formed an unlawful assembly and wielded sharp cutting weapons and caused grievous injuries to his father Merubhai and Bhagwanbhai and also assaulted his driver and, hence, he has lodged the complaint to take lawful action against them. The first information report was registered as Rajula Police Station I-C.R. No.121/2006 for the offence punishable under sections 307, 324, 323 and 114 of the Indian Penal Code and under section 135 of the Bombay Police Act.
4. Upon the first information being lodged, the Investigating Officer commenced the investigation and recorded the statements of the witnesses and drew various panchnamas. Upon conclusion of the investigation, having found that there was sufficient material against the accused, the Investigating Officer submitted a charge-sheet in the court of the learned Judicial Magistrate First Class at Rajula where it came to be registered as Criminal Case No.1375 of 2006. The case being exclusively triable by a Court of Sessions, it came to be committed to the Sessions Court, Amreli where it was Page 4 of 74 R/CR.A/516/2012 JUDGMENT registered as Sessions Case No.11 of 2007, which was subsequently registered as Sessions Case No.8 of 2011.
5. The charge came to be framed at Exhibit-4. The contents of the charge as translated into English reads thus:
"On 12.6.06 at 4:30 to 5:00 in the evening or at or around that time, near the Ramapir temple at Khera village, the complainant in this case Bharatbhai Merubhai Gujaria, the informant's father Merubhai and his uncle Bhagwanbhai Chitharbhai were sitting at their transport office, at that time the accused with a view to fulfill their unlawful object formed an unlawful assembly and as members of the unlawful assembly committed the offence punishable under section 147 read with section 149 of the Indian Penal Code.
On the above date, time and place, the accused with a view to fulfill the criminal object formed an unlawful assembly and took part as members of the assembly and wielded dangerous weapons like stick, knife, dharia (scythe) and sword and indulged in rioting and thereby, the accused committed the offence punishable under section 148 read with section 149 of the Indian Penal Code.
On the above date, time and place, the accused with a view to fulfill their illegal object, hurled abuses in vulgar language at the complainant in this case in a manner that would provoke breach of public peace and aided and abetted each other in such act and thereby, the accused committed the offence punishable under section 149 of the Indian Penal Code.Page 5 of 74
R/CR.A/516/2012 JUDGMENT On the above date, time and place, the accused with a view to fulfill their illegal object, wielded weapons like stick, dharia, knives and sword and accused Bhurabhai Kalubhai inflicted a blow with a knife on the stomach of the informant's father Merubhai Bijalbhai Gujaria and caused grievous fatal injuries and tried to murder him. In this act, the accused aided and abetted each other and committed the offence punishable under section 307 read with section 149 of the Indian Penal Code.
On the above date, time and place, the accused with a view to fulfill their unlawful object, wielded weapons like sticks, knives, dharia and sword and with the use of such weapons indiscriminately rained blows on Rameshbhai and Bhagwanbhai and voluntarily caused hurt to them and by aiding and abetting each other in this act, the accused committed the offence punishable under sections 324 and 324 read with section 149 of the Indian Penal Code.
On the above date, time and place, despite the fact that a notification of the District Magistrate, Amreli in respect of weapons was in force, the accused by wielding deadly weapons like sticks, knives, dharia and sword in public, committed the offence punishable under section 135 of the Bombay Police Act."
6. The charge came to be read over to the accused, who pleaded not guilty and asked for a trial. Before the trial court, the prosecution examined, in all, twenty-three witnesses and produced certain documentary evidence on record. The trial Page 6 of 74 R/CR.A/516/2012 JUDGMENT court, after appreciating the evidence on record, found that the prosecution had proved the charge against accused No.7 Bhurabhai Kalubhai Baraiya and convicted him of the offence punishable under section 307 of the Indian Penal Code and sentenced him to ten years' rigorous imprisonment and fine of Rs.1,000/- and in default of payment of fine, to undergo further simple imprisonment for a period of two months. Accused No.7 Bhurabhai Kalubhai Baraiya, however, came to be acquitted of the offences punishable under sections 324, 323, 504, 147, 148 and 149 of the Indian Penal Code and section 135 of the Bombay Police Act. and was acquitted . Accused No.1, 2 and 6, namely, the respondents in Criminal Appeal No.870 of 2012 came to be acquitted of the offences punishable under sections 307, 323, 324, 504, 147, 148 and 149 of the Indian Penal Code and section 135 of the Bombay Police Act.
7. Mr. Vipul Sundesha, learned advocate for the appellant in Criminal Appeal No.516 of 2012 assailed the impugned judgment and order of conviction. It was submitted that immediately after the incident, the victims, viz., Merubhai and Bhagwanbhai were taken to the Government Medical Hospital, at Mahuva and thereafter to Bhavnagar; however, in the history given before the Medical Officer, none of the accused has been named. Referring to the testimony of Bhagwanbhai, it was submitted that he was an injured eye witness and has stated that Merubhai was discharged after one and a half months, whereas the medical evidence shows that he was admitted to the hospital for a period of two weeks only. It was submitted that on the same set of evidence, six of the other accused have been acquitted and only this appellant has been convicted. Therefore, the trial court was not justified in relying Page 7 of 74 R/CR.A/516/2012 JUDGMENT upon the testimonies of the witnesses against the appellant also. Reference was made to the testimonies of the witnesses, viz., PW-3 Bharatbhai Merubhai Gujaria, PW-6 Bhagwanbhai Chitharbhai, PW-10 Rambhai Sarmanbhai Shiyal and PW-19 Narshibhai Bholabhai Gujaria, to submit that all of them are interested witnesses and therefore, no reliance can be placed upon their testimonies, whereas, no independent witness has been examined by the prosecution. It was pointed out that insofar as the injured eye witness Merubhai is concerned, the incident took place on 12.7.2006 and the yadi for recording his dying declaration was sent on 14.7.2006 and the dying declaration came to be recorded as late as on 27.7.2006, that is, almost fourteen days after the incident. It was submitted that there are material contradictions in the depositions of the witnesses on facts as well as, as regards the place of offence. It was submitted that even the scene of offence has not been properly established by the prosecution. Referring to the testimony of PW-10 Rambhai Sarmanbhai Shiyal and PW-19 Narshibhai Bholabhai Gujaria, it was submitted that the versions given by these witnesses are not believable. It was, accordingly, urged that having regard to the testimonies of the witnesses who do not come across as credible witnesses, the trial court was not justified in relying upon the same to pronounce on the guilt of the appellant. Alternatively, it was submitted that the appellant has been in jail for a considerable time and there has been a compromise between the parties and hence, in view of the compromise arrived at between the parties, the impugned judgment and order of sentence requires to be modified and the same may be reduced to the period undergone. In support of his submission that there was a compromise between the parties, the learned advocate Page 8 of 74 R/CR.A/516/2012 JUDGMENT placed on record affidavits of the injured witnesses and others, wherein it is stated that the parties have duly settled the matter between them and that the parties belong to the same caste and are related and that the leaders of their community have brought about a settlement between them, and with a view to ensure maintenance of peace amongst the parties in future, they have entered into a compromise, which is without any threat or pressure.
7.1 To bolster his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Rajendra Harakchand Bhandari v. State of Maharashtra, (2011) 13 SCC 311, wherein the court has recorded that the offence under section 307 is not compoundable in terms of section 320(9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence was out of question. However, the circumstances pointed out by the learned senior counsel, viz., it was almost twenty years since then; the appellants were agriculturists by occupation and had no previous criminal background; there had been reconciliation amongst parties; the relations between the appellants and the victim had become cordial and prior to the appellants' surrender, the parties were living peacefully in the village; the appellants had already undergone the sentence of more than two and a half years, persuaded them to take a lenient view and held that the ends of justice would be met if the substantive sentence awarded to the appellants therein is reduced to the period already undergone while maintaining the amount of fine.
7.2 Reliance was also placed upon the decision of the Page 9 of 74 R/CR.A/516/2012 JUDGMENT Supreme Court in the case of Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545, wherein the court took note of the fact that the occurrence had taken place almost twenty years back and there was nothing on record to show that the appellant had criminal antecedents, the court directed the appellant to undergo sentence of one year rigorous imprisonment under section 324 of the Penal Code and to pay a fine of Rs.20,000/- towards compensation to victim.
7.3 Reference was also made to the decision of the Supreme Court in the case of Mahesh Chand and another v. State of Rajasthan, AIR 1988 SC 2111, wherein the court, in a case where the accused was convicted of the offence under section 307, IPC, directed the trial Judge to accord permission to compound the offence after giving opportunity to the parties and after being satisfied with the compromise agreed upon. It was, accordingly, urged that the appeal deserves to be allowed or in the alternative, the sentence imposed upon the appellant is required to be modified to the period undergone or such period as the court deems fit in the interest of justice.
8. On the other hand, Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent in Criminal Appeal No.516 of 2012 and for the appellant in Criminal Appeal No.870 of 2012, invited the attention of the court to the testimony of PW-1 Dr. Jitendrakumar Harjivandas Ruparel, the Medical Officer at Sir T. Hospital, Bhavnagar, to point out that the Medical Officer has testified that the injury sustained by the victim was a grievous injury. It was submitted that the nature of the weapons used and the part of the body on which Page 10 of 74 R/CR.A/516/2012 JUDGMENT the injury was inflicted, together with the testimony of the Medical Officer, all make out a case of commission of the offence under section 307 of the Indian Penal Code.
8.1 Referring to the testimonies of the eye witnesses, it was submitted that the accused Bachubhai was armed with a sword. According to the version of the informant Bharatbhai Merubhai Gujaria, Bachu had inflicted a blow with a sword on the person of Bhagwanbhai on his back. Reference was made to the medical certificates Exhibits 16 and 18, to point out that both Merubhai and Bhagwanbhai had undergone medical examination and the injuries sustained by them were duly proved. It was submitted that from the testimonies of the witnesses, it emerges that the accused were present when the first incident took place, wherein Rameshbhai Malabhai was beaten and thereafter also, participated in the subsequent incident wherein Merubhai and Bhagwanbhai were injured which clearly shows that the unlawful assembly which was formed at the first stage of assaulting Rameshbhai had continued. It was submitted that the accused Bachubhai can be held guilty for the injury caused to Bhagwanbhai independently as well as with the aid of section 149 of the Penal Code. It was submitted that except for Bachubhai, insofar as the other accused who have been acquitted against whom the evidence is that they were armed with sticks, etc. and have beaten Rameshbhai and the informant Bharatbhai are concerned, they would be guilty of the offences with which they were charged with the aid of section 149 of the Penal Code, possessing arms and section 323 of the Penal Code, etc. It was submitted that the trial court has relied upon the evidence of independent witnesses as against the evidence of Page 11 of 74 R/CR.A/516/2012 JUDGMENT injured persons which is not in consonance with the legal principles. It was submitted that the trial court has not concluded that the testimonies of the injured witnesses were not reliable and it has just chosen from two sets of evidence. According to the learned Public Prosecutor, when it came to choosing, the trial court should have relied upon the evidence of the injured witnesses rather than the other independent witnesses. It was submitted that Merubhai and Bhagwanbhai are both eye witnesses and Bharatbhai, the informant was also present at the scene of incident and hence, more weightage should have been given to their testimonies.
8.2 Referring to the testimony of Bhagwanbhai, it was submitted that it supports the prosecution case that Bachubhai was present and had inflicted injury on his back. It was further submitted that both the independent witnesses, viz., Rambhai and Narsibhai have supported the prosecution case and no distinction can be drawn between the two sets of witnesses. It was, accordingly, urged that the prosecution has duly established the charge, at least against accused Bachubhai and that the trial court was not justified in acquitting him of the offence in question.
9. In rejoinder, Mr. Sundesha, learned advocate for the respondents in the acquittal appeal, submitted that the respondents have been acquitted by the trial court. This being an appeal against an order of acquittal, while appreciating the evidence on record, if the court finds that two reasonable conclusions are possible on the basis of the evidence on record, the High Court as an appellate court should not disturb the findings of fact recorded by the trial court. It was Page 12 of 74 R/CR.A/516/2012 JUDGMENT submitted that in the facts of the present case, even if it may be permissible to take another view, the view taken by the trial court being just, legal and proper, there is no warrant for intervention by this court. In support of such submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Mookkiah and another v. State, (2013) 2 SCC 89, for the proposition that in an appeal against acquittal, in the absence of perversity in the impugned judgment and order, there is no warrant for interference by the appellate court. That if two views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of the acquittal. Referring to the findings recorded by the trial court while acquitting the respondents, it was submitted that cogent, convincing and sufficient reasons have been assigned by the trial court for arriving at the conclusion that the prosecution has failed to establish the charge against the other accused, and that in the absence of any perversity in the findings recorded by the trial court, there is no warrant for intervention by this court.
10. Before discussing the complicity of the accused, it may be necessary to briefly refer to the testimonies of the relevant witnesses.
11. PW-1 Dr. Jitendrakumar Harjivandas Ruparel has deposed that on 12.7.2006, he was discharging duties as Medical Officer at Sir T. Hospital, Bhavnagar. Merubhai Bijalbhai and Bhagwanbhai Chitharbhai Gujaria had been sent to the Sir T. Hospital, Bhavnagar by virtue of a refer notes (Exhibits-13 and
14). The patients were admitted as indoor patients and he had treated them. He had first examined Merubhai Bijalbhai.
Page 13 of 74R/CR.A/516/2012 JUDGMENT Merubhai's son Bharatbhai had given history that at about 4 o'clock, Bharatbhai Kalubhai had inflicted a knife blow near the Khera Ram temple. He had physically examined the patient and had noted that there was an incised wound on the upper part of his stomach in the middle of his chest, on the left side. He had operated the patient on the stomach and treated him. The patient was admitted on 12.7.2006 and was discharged on 26.7.2006. The witness has produced the medical case papers as well as medical certificate at Exhibits-15 and 16. The witness has stated that the injuries sustained by the patient could have been caused with a sharp edged weapon and if there are no complications, the injury would heal in two weeks. The injury was a grievous injury and if proper timely treatment was not given, it could even result in death. Such injury could be caused by inflicting blow with a knife. It could also be caused with the tip of a sword. The witness has deposed that on that day, he had also examined Bhagwanbhai Chitharbhai and he had given history that Bhurabhai had inflicted blow with a knife at 7 o'clock in the evening. He had received preliminary treatment at Mahuva. The patient was conscious and he had three injuries, viz., (1) An incised wound on back left side and lower part of left scapular region down medially and forward midline 15 cm x 3 cm x subcutaneous tissue level; (2) "L" shaped wound on middle of lateral aspect of left arm 8 cm x 2 cm x subcutaneous deep; (3) An incised wound on upper part of nose and glabella vertically placed 6 cm x 1 cm x 1/4 cm.
11.1 The witness has further deposed that such injuries could be caused with a sharp edged weapon. The patient was admitted on 12.7.2006 and discharged on 16.7.2006. He has Page 14 of 74 R/CR.A/516/2012 JUDGMENT stated that Bhagwanbhai Chitharbhai has been admitted as an indoor patient and provided treatment. He has produced the medical case papers at Exhibit-17 and the medical certificate at Exhibit-18. He has stated that the patient has sustained simple injuries which would take about one week to heal. He has stated that such injuries could be caused with a knife and a sword. The witness is shown the knife (muddamal article No.8) and he has stated that the injury caused to Merubhai could have been caused by the weapon. He is also shown the tip of the sword (muddamal article No12) and he has stated that such injury was possible even by use of such sword. The witness has deposed that injuries No.2 and 3 sustained by Bhagwanbhai Chitharbhai could be caused with a knife. The witness is shown the knife (muddamal article No.18) and he has stated that the injury could be caused with such knife. The witness is shown the sword (muddamal article No.12) and he has stated that the injury No.1 could be caused with the sword.
12. PW-2 Dr. Rajeshsing Vasantsing has been examined at Exhibit-22. This witness was discharging duties as a Medical Officer at the Municipality Hospital, at Mahuva. On 12.7.2006 at 8:05 hours, Merubhai Bijalbhai Gujaria, resident of Khera was brought by Bharatbhai Merubhai. The patient's relative Bharatbhai has said that half an hour prior thereto, there was a fight at Khera village and he was injured with a knife. The patient was unconscious and he had noticed a knife injury on the stomach. The injury was fresh. Since the injury was a grievous injury, he was immediately referred to the Bhavnagar Sir T. Hospital. The case papers are produced on record and are exhibited as Exhibit-23. The witness has stated that he had given a medical certificate to Merubhai Bijalbhai under his Page 15 of 74 R/CR.A/516/2012 JUDGMENT signature, which is exhibited as Exhibit-24. The witness has stated that the injury could be caused with a knife. He has further deposed that on the same day, Bhagwanbhai Chitharbhai was also brought by Bharatbhai. Bharatbhai had informed him that there was a fight in the village, and in the fight, he was injured with a knife. The patient Bhagwanbhai was unconscious. The patient has sustained two injuries, viz.,
(i) sharp cutting injury on the left side of his shoulder and (ii) sharp cutting injury from the forehead to the right side of his nose. The injuries were fresh. He had stitched the injuries and provided treatment. He had issued a medical certificate to Bhagwanbhai Chitharbhai which is exhibited as Exhibit-27. He has produced the medical case papers at Exhibit-26. The Medical Officer has deposed that such injuries could be caused with a knife or also with a sword.
12.1 In his cross-examination, he has admitted that Merubhai was brought at 8:05 hours in the evening by Bharatbhai. He has admitted that in the history, he had stated that the incident had taken place half an hour prior thereto. He has admitted that Merubhai had not given the history. He has admitted that in the history given by the relative, the names of the assailants were not disclosed. He has admitted that Merubhai had sustained only one injury. He has admitted that ordinarily, the injured person or their relative give the name of the persons who had caused the injuries as well as the weapons with which such injuries were inflicted. He has admitted that after the patient came, he had sent a yadi to the Mahuva police. In his cross-examination, it has come out that when Bhagwanbhai was brought to him, he was semi- conscious and his relative had given the history in connection Page 16 of 74 R/CR.A/516/2012 JUDGMENT with his injury.
13. PW-3 Bharatbhai Merubhai Gujaria has been examined at Exhibit-36. This witness has deposed that they had a transport office where he and his father, viz., Merubhai Bijalbhai used to sit. This office was at a distance of about one thousand feet from the Ramapir temple. The incident took place on 12.7.2006 at about 4:00 to 5:00 in the evening. He and his father Merubhai were sitting at the transport office and their rickshaw driver Ramesh was opening the wheel of the Mahindra rickshaw, when Bhura Kalu, Savji Kalu, Bachu Ram, Naval Ram, Jivraj Ram, Kalubhai Lunabhai and Rambhai Lunabhai came to their office and without saying anything, started assaulting their driver Ramesh Mala. At this time, Bhura had a stick and the others also had sticks in their hands and they were assaulting Ramesh with sticks. Hence, his father Merubhai Bijalbhai intervened and pacified them and pulled them apart.
13.1 Thereafter, his father had persuaded these persons and made them sit there. After half an hour, Bhura Kala slipped away from there and brought a knife by way of a weapon. Savabhai came with a dharia and Bachu Ram had a sword. Jivraj had a stick and the others also had sticks. Naval Ram, Ram Luna and Kalu had sticks with them and they returned and started quarreling and a blow was inflicted on the left side of his father Merubhai Bijalbhai's stomach, due to which his father Merubhai fell down, and at this time, Bhagwanbhai who was standing in front of the office saw this and rushed up there, whereupon Bhura Kalu inflicted a blow on his eyebrow and one blow on his shoulder. Bachu Ram had inflicted a blow Page 17 of 74 R/CR.A/516/2012 JUDGMENT on Bhagwanbhai's back with a sword and the others started assaulting them with sticks. They fled after about half an hour to three quarters of an hour. By "they", he means the assailants.
13.2 In this incident, his father had sustained grievous injuries and Bhagwanbhai had also sustained grievous injuries and he (the witness) had sustained injuries on his hand, but he had not taken any treatment. Thereafter, his father Merubhai and Bhagwanbhai were directly taken for treatment from Khera village to Mahuva. He, Babukaka, Narshi Bhola, Mala Chithar and Ramesh Mala had taken them in a rickshaw to the Mahuva Government Hospital for treatment. There, his father and Bhagwanbhai were given treatment. From there, they had taken them for further treatment to Bhavnagar. At Bhavnagar, his father and Bhagwanbhai were admitted to the Sir T. Hospital and his father was required to be operated on the stomach. The police had come to the Bhavnagar Hospital and he had lodged his complaint before the police. The first information report is shown to him and he has admitted his signature thereon. He has admitted the contents of the first information report which is exhibited as Exhibit-37. As regards the reason for the incident, in his complaint he has stated that it was due to animosity on account of elections and after the incident and after the complaint was lodged, the police had recorded his additional statement, wherein he has stated that because his father had intervened to save Ramesh, he was assaulted with a knife. He has deposed that these people had the intention of killing his father by inflicting fatal injuries. He has stated that because his father had intervened to save Ramesh, they had attacked him. He has identified the accused Page 18 of 74 R/CR.A/516/2012 JUDGMENT in the dock and identified the muddamal knife (article No.16) which, according to him, was with Bhurabhai Kalubhai. He has also identified the muddamal sword (article No.12) saying that it was with Bachu. He has also identified the other weapons.
13.3 In his cross-examination, it has come out that he was the Sarpanch of Khera village and his father was a Member from the B.J.P. in the District Panchayat. He has also admitted that Hirabhai is also a B.J.P. M.L.A. His father, he and Hirabhai, all three are affiliated to the B.J.P. He has stated that he does not know as to whose members the accused were. He has stated that when his father contested the elections, the accused were not with them. Ramesh was a rickshaw driver. He is not aware that their driver Ramesh had committed rape on Kalu Luna's daughter Amrutben, and, therefore, there was a case against him. He has admitted that their case and Ramesh Mala's case are fixed on the same date. He has admitted that the present accused have also lodged a case against him and his father in respect of the quarrel. He has admitted that Sessions Case No.10 of 2007 is pending in the court for the offence punishable under sections 324, 323, 504 and 114 of the Penal Code and section 135 of the Bombay Police Act. He has stated that he does not know that it was the accused who had first filed a case against them and thereafter, they had filed a case against them. He has stated that Bhagwanbhai is his distant paternal uncle.
13.4 The witness has stated that the accused had first assaulted Ramesh Mala and gone away. Ramesh Mala was beaten near their office. Ramesh Mala was severely beaten with sticks by the accused. He has stated that Ramesh Mala Page 19 of 74 R/CR.A/516/2012 JUDGMENT was given about fifteen to twenty indiscriminate blows. He had sustained injuries on his entire body, including his hands, legs and back. He had applied iodex on the injuries on his back. He had applied the balm at Bhavnagar. There were marks at three to four places on his back. After the accused had beaten Ramesh Mala and gone away, they had kept him in their office. When the fight took place, his father had made Sava, Naval and Bachu sit there and the others were roaming around. Ramesh Mala had not become unconscious and was speaking. Ramesh Mala was beaten in front of the office. He has admitted that in his complaint, he has not stated that his father had made Sava sit there. The witness has stated that he does not remember that he has not stated in the complaint that Bhura slipped away after half an hour. He has admitted that he had not stated that Bhagwanbhai was injured near his eyebrow and shoulder with a knife. The witness has admitted that in the first information report, he has not stated that after half an hour to three quarters of an hour, the accused had fled from there. In connection with the incident, he had not made any phone calls to the police. They had told the accused that they would make a phone call to the police, but had not made any such phone calls. The witness has admitted that they were repairing the Mahindra passenger rickshaw when Ramesh was assaulted by these persons. Bhura alone had slipped away from there. Bhura came back after ten minutes. The witness has also deposed that in the first information report he had stated that Bhura had come back after five to ten minutes. They did not have any enmity with the accused. The witness has admitted that he, his father and Ramesh Mala were repairing the rickshaw and because there was some problem with the wheel, they had opened the wheel. The witness has Page 20 of 74 R/CR.A/516/2012 JUDGMENT denied the suggestion that no one had inflicted a blow with a knife on his father and that a spike from the rickshaw had slipped out and injured him on the stomach. He has stated that the incident took place in front of the office at a distance of about ten feet near the rickshaw. In his cross-examination, it has further come out that in the rickshaw, they had not decided to lodge a complaint. When they reached the Government Hospital, at that time, Rameshbhai Dabhi had come there. He had only told Rameshbhai that his father was assaulted with a knife. Rameshbhai had not told him to lodge a complaint. When he reached the Mahuva Government Hospital, it was around 7 o'clock, but he does not remember the exact time. He talked with the doctor at the Government Hospital as regards the incident. At Mahuva Hospital, his father was given treatment for about half an hour. During the half an hour, when they were in the hospital, the police had not come there. They had set off at about 8 o'clock from Mahuva to go to Bhavnagar in the Government ambulance. He has stated that while they were going from Mahuva to Bhavnagar, on the way they had not decided to lodge a complaint. They reached Bhavnagar during the period between 10 to 11 o'çlock at night. At Bhavnagar, his paternal uncle Babukaka had talked to the doctor and told him that they had sustained injuries with a knife. First his father was taken away for treatment. He does not know whether thereafter the doctor had informed the police. The police had come there and the doctor had told him to lodge a complaint. They had lodged the complaint next to the hospital. At a distance of about fifty feet from the hospital, there is a police chowky where the police was sitting and he had lodged the complaint. Ramesh Mala had told him to lodge the complaint. He was the driver and had come with him. At Page 21 of 74 R/CR.A/516/2012 JUDGMENT the hospital, they had lodged the complaint on the 14th before the Rajula police. The Rajula police had come on 14 th and he had narrated the incident before them. The police had taken his signature at the hospital.
13.5 The witness has denied that the incident did not take place near the Ramapir temple. He has denied that his father's incident did not take place near the water tank. He has deposed that the incident took place at a distance of about three to five feet from the rickshaw. The accused belong to his village and are of the same community and hence, he knows them. He had not given the names of the assailants to the doctor. The office is comprised of a room and a veranda and behind the room is Nanjibhai Golan's house and on the northern side is Rambhai Jesarbhai's house. There is no road towards the south of his office. No incident had taken place in the sewer behind the road. He had not shown the scene of incident to the police. His father had remained unconscious for over a month. He had regained consciousness after about a month. His father had stayed at the hospital for about forty four days. After a month, his father could speak properly. The witness has denied that his father was discharged from the hospital in twelve days. He has denied the suggestion that as there was a case against their driver Ramesh Mala regarding rape of the minor daughter of the accused, to pressurize them, they had filed a false case.
13.6 Thus, from the testimony of this witness it emerges that he was present at the scene of offence when the incident took place and had witnessed the incident. He had taken the victims to the hospital and had lodged the first information Page 22 of 74 R/CR.A/516/2012 JUDGMENT report. The witness has stated that he too was injured but had not taken any treatment in respect of the injuries sustained by him. Insofar as the injuries sustained by the witness's father and Bhagwanbhai are concerned, the witness has duly proved that Bhura Kalu had inflicted a blow with a knife on his father Meru Bijal's stomach as he is consistent in his version right from the time of lodging the first information report. Insofar as the fact regarding Bhura Kalu having inflicted a blow with a knife on Bhagwanbhai's eyebrow and Bachu Ram having inflicted a blow on his back is concerned, there is an improvement from what is stated in the first information report, inasmuch, in the first information report he has generally stated that Bhurabhai, Savabhai, Jivrajbhai, Rambhai, Bachubhai and Navalbhai had caused grievous injuries on Bhagwanbhai's back with weapons like sword and dharia. Therefore, while in the first information report he has attributed the injuries to the entire accused in general, in his deposition before the court, he has attributed specific injuries to specific accused. Insofar as the injuries sustained by the witness are concerned, the prosecution has not led any supporting or corroborative evidence to establish the same.
14. PW-4 Veljibhai Vihabhai is the panch of the scene of offence panchnama, who has been examined at Exhibit-41. He has not supported the prosecution case and has been declared hostile. PW-5 Mavjibhai Arjanbhai has been examined at Exhibit-43. He is the panch of the arrest panchnama. He too, has not supported the prosecution case and has been declared hostile.
15. PW-6 Bhagwanbhai Chitharbhai has been examined at Page 23 of 74 R/CR.A/516/2012 JUDGMENT Exhibit-45. This witness is an injured eye witness. He has deposed that the incident took place about one and a half years prior thereto. In the evening at about 5 o'clock, he and his brother Malabhai were at home. At that time, Vishnu was sitting at home and during the course of the conversation, they came to know that Ramesh was being assaulted and hence, they went to Merubhai's office. At that time, Bhurabhai Kalubhai, Savji Kalu and Bachu Ram were present at Merubhai's office and they were trying to bring Ramesh out and Merubhai was trying to reason with them. Thereafter, two persons, viz., Savji and Bachu remained there and Bhura went to call his father and others. Thereafter, all seven people came, wherein Bhura had a knife, Savji had a dharia, Bachu Ram had a sword, and Ram, Naval, Jivraj and Kalu had sticks. Bhura had inflicted a fatal blow on Merubhai's stomach with a knife. Bhura had also inflicted a blow on his eyebrow with a knife and the other blow caused injury on his left hand. He has deposed that he was thrown into the sewer. Bachu had a sword with him and he had struck him on his back and the others had weapons like dharia, swords and sticks and started assaulting him. He came out of the sewer and went and sat at Mavji's shop. Thereafter, Ramesh and his brother had put them in a rickshaw and taken him and Merubhai to the Mahuva Hospital. They were given treatment and sent to the Bhavnagar Government Hospital for further treatment as the injuries were serious. They were admitted at Bhavnagar and Merubhai had to undergo surgery of his stomach. At that time, Merubhai could not speak. Merubhai was under treatment for one and a half months. He does not know that if there was any talk of an affair between Ramesh and Amrutben, but they were beaten because of that. The police had recorded his statement Page 24 of 74 R/CR.A/516/2012 JUDGMENT in this regard. He had taken treatment at the hospital at Bhavnagar for about six to seven days. The witness has identified all the accused persons except accused Bachu Ram, who was not present on that day. He has also identified the muddamal knife, dharia, sticks, etc. 15.1 In his cross-examination, he has admitted that Bharatbhai Merubhai is his son. The witness has admitted that Ramesh Mala is his brother's son. He has admitted that a rape case was pending against Ramesh Mala. He has admitted that the incident took place on account of a love affair between Ramesh and Amrutben. He has admitted that he, his brother Malabhai and Vishnu were sitting at home at about 4:00 to 4:30. Nobody had come to call them, but they had come to know about it through word of mouth. He cannot say who had told him about it. The witness has admitted that in the cross case, he is an accused. He has admitted that his house is at a distance of 1500 feet from Merubhai's office and that there are no residential houses near Merubhai's house, but there is one house on the rear side. The witness has admitted that when he, his brother and Vishnu went to Merubhai's office, at that time, Ramesh was shut inside the office and Merubhai was trying to reason with them not to quarrel. Merubhai had tried to reason with them for fifteen to twenty minutes, but the accused were not persuaded. They were standing there on the side. Savji and Bachu were made to sit at the office and Bhuro fled to call others. There were no women there. Bhura had brought the others. He had brought his father and his grandfather. He has admitted that Bachu Ram had a sword, Sava had a dharia, Naval had a stick, Jivraj had a stick, Kalu had a stick and Ram had a stick. He, however, has stated that Page 25 of 74 R/CR.A/516/2012 JUDGMENT they had not beaten him with the sticks. The witness has admitted that the incident took place in front of Merubhai's office near the rickshaw. The incident took place for around five to fifteen minutes. He has admitted that except for Bhura and Bachu, no one else had assaulted him. He was taken to the Mahuva Hospital at around 5:30. He has admitted that at the Mahuva Government Hospital, he had not spoken about the incident with the doctor and had not given the names of the accused. The witness has denied that at the Mahuva Hospital, at 12:30 at night, they had stated facts about the incident. He has stated that they had stayed at the Mahuva Hospital only for five to ten minutes and after being provided treatment, they were immediately taken to Bhavnagar. It has not happened that they were given stitches at Mahuva. He had not stated before the doctor at Mahuva that he was injured with a knife. They had reached Bhavnagar at about 10 o'clock at night. When they reached Bhavnagar, he was not aware of anything and he could not recognize anyone. The witness has admitted that at Bhavnagar, on the next day, he was fully conscious. The doctor had not put any questions to him and the police had come from Bhavnagar. The police from Bhavnagar had come on the third day. His friends and relatives were with him at the Bhavnagar Hospital, viz., Bharatbhai, Malabhai, etc. Inter se, they did not talk about lodging a complaint with the police. The witness has admitted that the incident did not take place at 7 o'clock or at 4 o'clock or 12:30 at night.
15.2 In the cross-examination of the witness, it has further come out that the police had come at 4 o'clock in the evening. He had got stitches over his eyebrow where he was wounded Page 26 of 74 R/CR.A/516/2012 JUDGMENT with a knife. He had also got stitches on his left arm. There were stitches on his back also. His shirt was torn by these people and he only had a pant. His shirt was drenched with blood. He had remained at the hospital for five to six days. Merubhai was discharged after one and a half months. The witness has denied that Merubhai was discharged from the hospital after twelve days. He has stated that there were pools of blood on the ground. He has stated that he, Merubhai or Bharatbhai do not have any enmity with the accused. The witness has admitted that Merubhai was intervening to save Ramesh Mala and thereafter, there was a fight and he was injured. He has admitted that Merubhai's office has a veranda and a room. He has stated that the rickshaw was lying beyond Merubhai's office and veranda, and thereafter, there was the Chanch-Khera tar road and this road was in the direction of Chanch-Khera Patva road. The road was adjoining Merubhai's office, that is to say, it is at a distance of three to four feet and the incident took place there. Towards the north of the Chanch-Khera-Patva road, there are sewers. These sewers are all of different depths. The sewers are at a distance of about ten to fifteen feet from the road and thereafter, there are Jina Chotha's agricultural field and Mavji Chotha's house and shop. He has denied that the accused had not assaulted anyone. He has stated that he was flung into the sewer which was waist deep and was filled with water. Two-three persons had pushed him and flung him into sewer. He was assaulted with a sword in the sewer which was filled with water, and he was dripping with water and had mud over him. He had gone to Mahuva in the same clothes.
15.3 From the testimony of this witness, it emerges that
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according to the version given by him, at the time of the first incident regarding Ramesh is concerned, three of the accused were involved, namely Bhurabhai Kalubhai, Savji Kalu and Bachu Ram. Therefore, to that extent there is a discrepancy between the testimony of this witness and the testimony of PW 3 Bharatbhai Meubhai who has named all the accused in the first incident also. The witness, however, is consistent regarding Bhura having inflicted a blow with a knife on Merubhai's stomach and on the witness's eyebrow and on his left hand with a knife; as well as regarding Bachu having inflicted a blow with a sword on his back. This witness is an injured eye-witness has is consistent as regards which accused had caused which injury to him as well as to Merubhai Bijalbhai. The version given by the witness is supported by the injury certificate issued by the Medical Officer as well as the testimony of the Medical Officer. The witness has been cross- examined at length; however, the defence has not been able to dent his credibility. Therefore, there is no reason to disbelieve the testimony of this witness to the extent he attributes the injuries caused to him and Merubhai to specific accused.
16. PW-7 Merubhai Bijalbhai Gujaria has been examined at Exhibit-47. This witness has, inter alia, deposed that at the time of the incident, he had been elected as a Member of the District Panchayat. His son has stated that the reason behind the quarrel was election, which is a mistake. The actual reason was that Ramesh Malabhai had an affair with Kalubhai's daughter Amrut and because of the affair, the accused were roaming around to beat Ramesh Mala and there were grievances amongst the parties. This Ramesh Mala was his Page 28 of 74 R/CR.A/516/2012 JUDGMENT rickshaw driver at the time of the incident. The incident took place on 12.7.2006 between 4:00 to 5:00 in the afternoon. He was at his office which is situated on the side of the road in Khera village. His son Bharat was also present there. They had sent Ramesh to get spanners for the rickshaw. When he came with the spanners, they, that is, Bhura Kala, Savjibhai Kalubhai and Bachubhai Rambhai saw Ramesh and they came and started assaulting him. Hence, he rescued Ramesh from beating. He had pushed Ramesh into his office and told the three persons not to quarrel there and to go away. The three persons told him that Ramesh was their enemy and asked him to take him out. He told him that if they had any enmity with him, their houses were opposite each other and they may do whatever they like there, but they should not do anything in his office. At that time, Bhuro had gone home and when he returned, he had brought four persons with him, viz., Rambhai Lunabhai, Kalubhai Lunabhai, Navalbhai Rambhai and Jivrajbhai Rambhai. Accused Bhurabhai Kalubhai had a knife in his hand, Naval had a sword in his hand, Sava had a dharia, and Rambhai, Kalubhai, Naval and Jivraj had sticks in their hands. Bachu Ram had sword. All these people got together and demanded that Ramesh be taken outside, whereupon he told them that once the police come, he will take him out. Thereafter, they got provoked and Bhura Kalu, on account of provocation, inflicted a blow with a knife in the middle of his stomach and thereafter, they were indiscriminately beating him. At that time, Bhagwan Chithar had sustained an injury near his nose which Bhura had caused by inflicting a knife and Bhura had inflicted blow with a knife on his shoulder. Bachu had inflicted a blow with a sword on his back. Others had sustained injuries with blunt substances. Bharat had also Page 29 of 74 R/CR.A/516/2012 JUDGMENT sustained minor injuries. On account of being injured, he had become unconscious. He was bleeding. Thereafter, he was firstly taken for treatment to Mahuva and thereafter, was taken for further treatment at Bhavnagar. At the hospital at Bhavnagar, he had undergone surgery. He had stayed at the hospital for about fifteen to seventeen days. He was in a serious condition for two to three months. The witness has deposed that the intention of the accused was to kill him and Bhagwan. The reason for the incident was on account of grievance against Ramesh Mala who was his driver, due to which he (the witness) was caused serious injuries. The witness has identified the muddamal knife which Bhurabhai Kalabhai had used to cause injury to him. The witness has deposed that the first information report was given by his son Bharatbhai Merubhai Gujaria and the police have recorded his statement in connection with the incident. The witness is shown muddamal article No.1 and he has stated that these were the clothes that he was wearing at the time of the incident. He has identified all the accused who were present in the court and has said that Bachubhai Rambhai was not present in the court.
16.1 In his cross-examination, the witness has admitted that he was elected in the Amreli District Panchayat from the Bharatiya Janta Party. He has admitted that the informant Bharatbhai was his son and Bhagwanbhai Chitharbhai was his distant cousin. Ramesh Mala was his rickshaw driver. He has denied that because Ramesh Mala had raped Amratben, the present case had been lodged. He has stated that no such rape has been committed. He has stated that the accused did not have any enmity with him. If they had any enmity with Page 30 of 74 R/CR.A/516/2012 JUDGMENT Bhagwanbhai, he does not know. He has admitted that in Sessions Case No.10/2007, there is a complaint against him regarding commission of the offences under sections 324, 323, 504, 114 of the Indian Penal Code and section 135 of the Bombay Police Act, wherein he is an accused. In that case, the allegation against him is of inflicting blows with a stick on Kalubhai and women. The complaint was lodged by his son and his (witness's) statement was recorded at Khera village. The police have recorded his statement one and a half months after the incident. Prior thereto, the Mamlatdar, Bhavnagar had recorded his statement. His statement has not been recorded anywhere else. The witness has stated that before the police, he had stated that he had come to know that Bhagwan Chithar was injured. He does not remember as to whether he had stated the date of his discharge from the hospital to the police. In his cross-examination, it has come out that he does not know whether he was given treatment by one doctor or two doctors because at the relevant time, he was unconscious. On 12.7.2006, if the doctor had asked anything, he is not aware as he was unconscious. When he became conscious, the doctor had made inquiries from him. On 12.7.2006, he was not conscious. The assault had taken place at his office. The rickshaw was at a distance of about ten feet from his office and he was at a distance of about four feet from the rickshaw. There is no Ram temple near the scene of incident, but there is a Ramapir temple. The incident had taken place near the Ramapir temple. He has stated that he had not asked his son as to whether he had stated anything before the doctor. He has stated that he cannot say as to at what time he was taken from Khera village to Mahuva. He was unconscious. His son had told him that he was taken in a rickshaw. The witness has Page 31 of 74 R/CR.A/516/2012 JUDGMENT denied that all facts had been stated to him by his son Bharat. He was told that his son Bharat was with him at the Mahuva hospital.
16.2 In his cross-examination, it has further come out that after he recovered his son Bharat had not told him he was taken to the hospitals at Mahuva and Bhavnagar, where he had informed the doctor. He has denied that his son Bharat had given history before the Mahuva Hospital to the effect that the incident took place at 12:30 at night. He has denied that even Bhagwanbhai had stated at the Mahuva Hospital that the incident had taken place at 12:30 at night. He has admitted that after he was admitted at Bhavnagar on 26.7.2006 and thereafter, when he was discharged, the police had recorded his statement. He has admitted that at 4:45 in the evening on 26.7.2006, the Executive Magistrate, Bhavnagar had recorded his statement and at that time, Dr. K.C. Dave was also present. He has admitted that they as well as the accused belong to the Koli community and are residents of the same village. Since the time he could understand, he knows the accused by their names. They are his relatives and hence also, he knows them by their names. The Mamlatdar had recorded his statement at Bhavnagar. He has admitted that before the Mamlatdar, he had stated that the incident had taken place at 16:30 hours in the evening. He has admitted that before the Taluka Executive Magistrate, he had stated that "Ramesh Mala had come to my office and behind him two persons Bhura Kalu Koli and two others, viz., Rambhai Lunabhai's son and Kalubhai Lunabhai's son, in this manner three of them had come". He has stated that as he was told the names of the accused who had come first he had given the names of those accused before the Page 32 of 74 R/CR.A/516/2012 JUDGMENT Executive Magistrate. He has denied that except for the name of Bhura Kalu, he had not given the specific names of anyone else. He has denied that he was not to be murdered. He has admitted that when his statement was recorded by the Taluka Executive Magistrate, he was fully conscious. He has admitted that he had read the statement and had signed below it in the presence of the Executive Magistrate who had also endorsed the same.
16.3 In his cross-examination, it has further been elicited that he must have stated that he was sitting in the office at about 4 to 5 o'clock. He has admitted that in his statement, he has not stated that Ramesh had gone home to fetch spanners. He does not remember that in his police statement, he has not stated that Ramesh was sent to fetch the rickshaw spanners and when he brought the spanners, they had seen him. He has admitted that he has not stated that he had pushed Ramesh into the office and locked him. He has not used the words "pushed". The witness has stated that after he was inflicted a blow with a knife, he fell down unconscious and is not aware as to what had happened to him. His office is at a height of six inches from the ground. He has denied that Bhura had not inflicted a knife blow on him, but that in the fight, while he was trying to rescue, he had fallen on the rickshaw and sustained injury from the spike in the rickshaw. The witness has denied that no such incident had taken place. He has stated that no one except Bhura has injured him, however, what he wants to say is that at the instance of all the accused, Bhura had inflicted the knife blow on him. He has denied that he was not wearing the muddamal shirt at the time of the incident. The witness has admitted that the rickshaw was at a distance of Page 33 of 74 R/CR.A/516/2012 JUDGMENT about ten feet from his office and that the road is at a distance of ten feet from the rickshaw. His office is at a distance of twenty feet from the road. Nanjibhai Golanbhai's house is situated behind his office. After Nanjibhai's house there is on the cart road for going to the village. He has admitted that after his office there is a veranda and thereafter there is open space on both the sides. He has admitted that from his office towards Chanch-Khera, there is a strip of road, behind which there are roads. The witness has admitted that thereafter, Jinabhai Chothabhai's agricultural field and Mavjibhai Chothabhai's house and shop are situated. In his cross- examination, it has further been elicited that the incident has taken place next to the rickshaw and his office. He was inflicted a knife blow at a distance of ten feet from the rickshaw, which is at the edge of the road. The witness has denied that at the time when the incident took place, his son and Bhagwanbhai were not present. The witness has denied that subsequently, the names of the accused have been wrongly given. He has denied that none of the accused persons were present there. He has denied that Bhura has not assaulted him. He has denied that as his driver Ramesh had raped the daughter of the accused, to escape from it, a false complaint has been lodged.
16.4 This witness's evidence supports the version given by Bhagwanbhai that in the first incident when Ramesh Mala was assaulted, three of the accused were present. Insofar as the injury caused to the witness is concerned, the witness who is an injured witness has clearly deposed that Bhura Kalu had inflicted a blow with a knife on his stomach. While it is true that the statements of this witness came to be recorded at a Page 34 of 74 R/CR.A/516/2012 JUDGMENT belated stage at the time when he was discharged from the hospital, there is no reason to disbelieve the testimony of the witness when he says that Bhura Kalu had inflicted a knife blow on his stomach, inasmuch as his testimony finds support in the testimonies of the other eye witnesses as well as from the medical witnesses. Moreover, the witness has truthfully admitted that after he sustained the injury he had become unconscious and the facts regarding the injuries sustained by Bhagwanbhai had been stated by him on the basis of hearsay.
17. PW-8 Bharatbhai Khimabhai Shiyal has been examined at Exhibit-50. He is a panch of the panchnama of the clothes of Merubhai, Bijalbhai and Bhagwanbhai Chitharbhai. He has admitted the contents of the panchnama. In his cross- examination, it has been elicited that except for the fact that he had signed the panchnama, he does not know anything else. PW-9 Madhubhai Rambhai Mulani, is the Circle Officer who had drawn the map of the scene of offence on the basis of the panchnama. This witness has been examined at Exhibit-56. He has produced that map which is exhibited as Exhibit-58.
18. PW-10 Rambhai Sarmanbhai Shiyal has been examined at Exhibit-64. The witness has deposed that on the day of the incident, he was sitting at Merubhai's office. At that time, Merubhai, Bharat and Ramesh were repairing the rickshaw. They were repairing the right side rear wheel of the rickshaw. Merubhai had sent Ramesh to fetch spanners and pliers from the village. Thereafter, Ramesh Mala had come with the pliers and spanners. Subsequently, three persons, viz., Bachubhai, Savobhai and Bhurobhai had come there. They started kicking and beating Ramesh Mala. Therefore, he, Merubhai, Page 35 of 74 R/CR.A/516/2012 JUDGMENT Bharatbhai and his (witness's) brother Jesarbhai intervened and rescued Ramesh from the beating and shut him in Merubhai's office. Ramesh had been shut in the office to prevent the accused from beating him anymore. After shutting the office, Merubhai made the assailants, viz., Bhuro, Savo and Bachubhai sit outside his office. Thereafter, Merubhai made a phone call to the police and before the police could arrive, Bhuro went away from there. Thereafter, Bhuro came with Rambhai, Kalubhai, Jivraj and Naval to Merubhai's office and they asked that Ramesh be taken out as they wanted to kill him. Therefore, Merubhai had said that he would not take him out of the office and would not let them assault him. Whereupon Bhura took out a knife and inflicted a blow on Merubhai's stomach due to which, Merubhai had fallen down. Therefore, Bharat and Narshi Bhola caught hold of Merubhai. Thereafter, as his house was nearby, the witness went and brought a towel and wrapped it around Merubhai's stomach. Thereafter, Mala Chithar, Bhagwan Chithar and Vishnu Mala had arrived, whereupon Bhura inflicted a blow above Bhagwanbhai's eye as well as on his shoulder with a knife and Bachu Ram had inflicted a blow on Bhagwanbhai's back with a sword. Thereafter, he put Merubhai in a rickshaw and returned home. The police had recorded his statement. The witness has identified the muddamal weapons and has identified the accused before the court. The witness has stated that the incident took place at 5 o'clock in the evening. He has stated that the muddamal sword (article No.10) was with accused Bachu. The witness has also deposed that the muddamal knife was in the possession of Bhurabhai Kalubhai and that he had inflicted a blow with this knife on Merubhai's stomach. The witness has stated that the reason for the incident was Page 36 of 74 R/CR.A/516/2012 JUDGMENT regarding some dispute about Ramesh and Kalubhai's daughter.
18.1 In the cross-examination of this witness, he has stated that Merubhai Bijalbhai was of their village and was the Chairman of Amreli District Panchayat. He has admitted that Merubhai's son Bharatbhai is the Sarpanch of the village. He has admitted that his house is next to Merubhai's office. He has further stated that he has relations with Merubhai were that of an enemy. He has stated that they were residing at the Charanna Khara and were told not to reside there and since then, they did not have good relations. He has admitted that Jesar was his brother and he was residing with Merubhai. He has stated that he had come to the court because the police had told him to do so. He has stated that he was a labourer in a salt-pan. He does not remember the date on which he was sitting at Merubhai's office. He does not know the month in which the incident took place or the season. On the day of the incident, he had left his house at 5 o'clock and was sitting near the vegetable vendors. The vegetable vendors were people from other villages and they were about seven to eight in number. He had not purchased any vegetables. While he was sitting next to the vegetable vendors, an altercation had taken place. When the altercation took place, the vegetable vendors left the vegetables and went away at a distance. The vegetables which were lying there were scattered. He has stated that the incident took place after 5 o'clock, but he does not remember the exact time. He has admitted that at the time of altercation, huge mobs had gathered there. He has admitted that he had not heard what anyone was speaking in the mob. There were about twenty to twenty five people or Page 37 of 74 R/CR.A/516/2012 JUDGMENT more in both the mobs. Many people from the village had also gathered there. He is not aware as to who was trying to rescue whom in the mob. He was standing at a distance from where they were fighting. From where he was sitting next to the vegetable vendors, he had gone to see the mob. He has deposed that the present accused had weapons in their hands, whereas the opposite party did not have any weapons. The people from the opposite side were standing there, but he did not go in between. He has admitted that when the fight assumed assumed violent form, he had fled from there and does not know what happened thereafter. He has stated that he had seen a pool of blood next to the vegetables.
18.2 In his cross-examination, it has further come out that after he went from the scene of offence, he had not returned and he does not know as to what had transpired after he left. The witness has stated that he had heard that after Merubhai was put in the rickshaw, he was taken to the hospital. He does not know what happened to the opposite party. The witness has admitted that after the altercation took place and he went to the village, he had not come back to Merubhai's office. The incident took place about fifteen minutes after he sat near the vegetable vendors. He has admitted that when the altercation commenced, no one was there except for the vegetable vendors. He has admitted that at the time of the incident, Merubhai's rickshaw was lying near his house. He has admitted that he does not know who was near the rickshaw. Thereafter, he has stated that Merubhai was next to the rickshaw and no one else was there. He knows Ramesh Mala who was Merubhai's driver. He has admitted that Bachubhai, Savo and Bhuro are from his village and are Kolis and hence, he knows Page 38 of 74 R/CR.A/516/2012 JUDGMENT them. He has admitted that he has no speaking relations with these persons. He has denied that he cannot say as to who had assaulted whom in the incident. He has asserted that in the incident, Bhagwanbhai and Merubhai were injured. Bhurabhai had injured them with a knife. He has admitted that since the knife with which Bhura had inflicted blows had become bloodstained, he had thrown it and fled. He has thereafter stated that after assaulting Bhagwanbhai, Bhurabhai had fled. The witness has denied the suggestion that Bhurabhai had not inflicted a blow with a knife on Merubhai, but Bhagwanbhai tried to inflict a blow with a knife on Bhurabhai, however, Bhurabhai moved towards one side and the knife held by Bhagwanbhai injured Merubhai on his stomach. The witness has denied the suggestion that after Bhagwanbhai inflicted two blows with a knife on Bhurabhai's buttocks, upon Merubhai coming in between, the knife held by Bhagwanbhai injured Merubhai. The witness has stated that he had seen two persons being injured and had not seen anyone else being injured. He has stated that he had intervened to rescue Ramesh and had not held anyone else. The witness has admitted that at about 5:30, Rameshbhai was shut in the office. He has admitted that after Rameshbhai was shut in the office, the mob had gathered to bring him out and upon Merubhai refusing to do so, the incident had continued for about fifteen to twenty minutes. Thereafter, the incident had taken place where the vegetables were being sold. He has admitted that the mob was demanding that Ramesh be taken out, whereupon Merubhai made a phone call to the police and at that time, Bhurabhai had fled. He has denied that he had not stated before the police that at the place of altercation, there were huge mobs on both the sides and both the mobs Page 39 of 74 R/CR.A/516/2012 JUDGMENT were armed with weapons. The witness has denied that Bhurabhai had not assaulted Merubhai and Merubhai being his neighbour and with a view to see that Bhurabhai is punished, he is falsely deposing before the court.
18.3 From the testimony of this witness, it appears that he was present at the scene of offence when the incident took place and has witnessed it. In the cross-examination of this witness, it has been elicited that he had hostile relations with Merubhai. Therefore, there is no reason for this witness to depose falsely in favour of the prosecution case. The testimony of this witness supports the other eye-witnesses who have stated that Bhura Kalu had inflicted a knife blow on Merubhai's stomach and had also inflicted blows near Bhagwanbhai's eyebrow and his shoulder with a knife and that Bachu Ram had inflicted a blow with a sword on his back and therefore, to that extent his testimony deserves to be accepted. This witness has stated certain facts not stated by any other witness, like huge mobs having gathered at the scene of offence, etc. However, such facts were not stated by him in his statement recorded by the police and are therefore, in the nature of an improvement. To the extent the testimony of this witness is contrary to the testimony of the other witnesses and a contradiction in the nature of omission is proved as to his police statement, it does not merit acceptance.
19. PW-11 Anilbhai Shahbuddinbhai Khetani has been examined at Exhibit-78. He is the panch of the panchnama whereby the clothes of the accused and the sword have been recovered. In his cross-examination it has been elicited that he has put his signature in a large number of panchnamas and Page 40 of 74 R/CR.A/516/2012 JUDGMENT comes to depose before the court. He has further admitted that whenever the police need a panch they come and obtain his signature. He has admitted that the police had come to his fruit cart next to the police station and obtained his signature on a prepared panchnama and that except for that he does not know anything else.
20. PW-12 Rajubhai Hipabhai Gora, who is the panch of a sword and stick recovery panchnama, has been examined at Exhibit-80. This witness has not supported the prosecution case and had been declared hostile. PW-13 Devayatbhai Bhayabhai Chavda has been examined at Exhibit-83. He has produced a copy of the notification issued by the Additional District Magistrate prohibiting carrying of arms in public places. The notification is exhibited as Exhibit-84. PW-14 Barkatali Mansurali Kajani is a panch of arrest panchnama and has been examined at Exhibit-85. This witness has not supported the prosecution case and has been declared hostile. PW-15 Didarali Gulamali Royani is a panch of the arrest panchnama Exhibit-86. The witness has been examined at Exhibit-87. He too, has not supported the prosecution case and has been declared hostile.
21. PW-16 Nanjibhai Ukabha Dhandhalia has been examined at Exhibit-91. This witness has deposed that on 27.6.2006, he was discharging duties as a Deputy Mamlatdar in the Revenue Department at Bhavnagar when he received a yadi from the P.S.O. at 16:30 hours, and hence, he had gone to the Sir Takhatsinhji Hospital, Bhavnagar at 16:40 hours to record the dying declaration. The witness has produced the yadi at Exhibit-92. He has deposed that he has reached the hospital at Page 41 of 74 R/CR.A/516/2012 JUDGMENT 16:40 hours and contacted the doctor in-charge and after showing him the yadi, he had told him that he was required to record the dying declaration of the patient. Therefore, the doctor had accompanied him to ward No.7, where the patient was under treatment. The doctor had identified the patient and had said that the patient was Merubhai Bijalbhai. Thereafter, he had asked the relatives of the patient who were standing near him to go outside and they had left the room. Before recording the dying declaration, the doctor had given a certificate that the patient was conscious. The doctor had examined him in his presence and had given a certificate of consciousness. At that time, the doctor was also present. He had asked the patient as to why he had been brought to the hospital and upon asking him, he had stated that on 12.7.06 at 16:30 in the evening, Merubhai Bijalbhai was sitting at his office at Khera village, at that time when his rickshaw driver Rameshbhai Malabhai came running there and Bhurabhai Kalubhai came running after him and two other persons, namely, one Rambhai Lunabhai's son and the other Kalubhai Lunabhai's son whose name Merubhai Bijalbhai does not know, were there. These three persons were giving kicks and blows to Rameshbhai Malabhai and Merubhai intervened and asked them as to why they were beating him. In the meanwhile, out of the three persons, Bhurabhai Kalubhai had stabbed the patient Merubhai Bijalbhai with a knife. Thereafter, all the three went away. Thereafter, Merubhai Bijalbhai's son Bharatbhai brought him to the hospital.
21.1 The witness has deposed that thereafter, he had asked the patient as to whether the statement recorded by him, which was read over to him, was as stated by him and that he Page 42 of 74 R/CR.A/516/2012 JUDGMENT had put his signature below. He has further deposed that after the dying declaration was recorded, he had obtained the signature of the doctor. The dying declaration was recorded in his own handwriting. After the dying declaration was recorded, Merubhai had signed it in his presence. He has opined that Merubhai was in a conscious state of mind at the time when the statement was to be recorded and was in a fit state of mind. The dying declaration has been produced at Exhibit-93.
21.2 In his cross-examination, the witness has admitted that the person who gave the dying declaration had not given the name of Rambhai Lunabhai. He has admitted that the patient had not given the name of Kalubhai Lunabhai. He has stated that he had not asked the patient as to which son of Rambhai Lunabhai and which number. Similarly, he had not asked as to how many sons Kalubhai Lunabhai had and the number of the son who had attacked. He has admitted that the surname of Bhurabhai Kalubhai was not written. The witness has stated that he cannot say as to whether the injured patient would give the name of every person. He has admitted that on the last page of the statement Exhibit- 93, there are over-writings. He has admitted that in the yadi Exhibit-92, it is stated that Merubhai Bijalbhai Koli was injured in a fight on 12.7.2006.
22. PW-17 Babubhai Kanabhai Gujaria, who is the panch of the scene of offence panchnama, has been examined at Exhibit-
101. He has not supported the prosecution case and has been declared hostile. PW-18 Savjibhai Mangalbhai Gujaria is the panch of the panchnama Exhibit-44 and has been examined at Exhibit-102. He too, has not supported the prosecution case and has been declared hostile.
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23. PW-19 Narshibhai Bholabhai Gujaria has been examined at Exhibit-107. The witness has deposed that the incident took place about four years ago. At the time of the incident, he was at home. Upon hearing the voices of people, he had gone to Merubhai's office. At that time, near Merubhai's office, a puncture in Ramesh's rickshaw was being repaired, when Bhuro and Savji came there and had assaulted Ramesh. Therefore, Merubhai had shut Ramesh in his office. Thereafter, Bhuro and Savji had gone away and had come back again. Bhuro had told Merubhai to take Ramesh out of the office as he wanted to beat him. Merubhai has said that he would not let him die in his office; hence, Bhura had inflicted a blow with a knife on Merubhai's stomach. Therefore, he had caught hold of Merubhai. Bachubhai had a sword in his hand, Savji had a dharia in his hand and all the others had sticks. Merubhai was taken to the hospital in a tempo. First, he was taken to the hospital at Mahuva and from there, he was taken to Bhavnagar. The witness has stated that he does not know why the incident has taken place and that even from the conversation; he had not come to know about it. The police had recorded his statement. He has stated that he can recognize only Bhura and Savji and does not know anyone else. He has identified the muddamal article No.10 sword and stated that it is the same sword which Bachu Rambhai had with him. He has identified the muddamal article No.4 as the dharia which was held by Savji Kalu and has further stated that Bhurabhai had the knife muddamal article No.16 with which he had injured Merubhai.
23.1 In his cross-examination, he has stated that since the Page 44 of 74 R/CR.A/516/2012 JUDGMENT persons who had come to quarrel were the residents of their village Khera, he knew them. The fight took place near Merubhai's office. At that time, he was at home. His house was at a distance of half a kilometre from Merubhai's office. He had walked half a kilometre to reach Merubhai's office. He has admitted that when he reached Merubhai's office, many men and women had gathered there. He has stated that when he came, no one had fallen. When he came, thirty to thirty five people had gathered outside Merubhai's office. There were about thirty to thirty five on-lookers. He cannot say how many of them were men and how many of them were women. The people who were fighting with each other were about ten in number. He does not know how many women were involved in the fight. He had not seen how many men were fighting against each other. He has admitted that Merubhai was a Member of the District Panchayat and his son Bharatbhai was the Sarpanch of the village. He has admitted that if he wanted any certificate to be issued, Bharatbhai and Merubhai used to do such work for him. The fight had taken place near the place where the rickshaw was lying. The fight had taken place where the women were selling vegetables. He has further stated that the fight had taken place on the banks of the pond and the people had also fallen into the pond. He has denied that at the instance of Merubhai, he was falsely deposing before the court and in fact, nothing had happened as stated by him. The blood had spilled near the rickshaw. The incident had taken place at a distance of two feet from where the rickshaw was lying. He has admitted that when he went there, Rameshbhai and Merubhai were repairing the rickshaw. He has denied that when Rameshbhai and Merubhai were repairing the rickshaw, Merubhai was injured on his stomach by a rod in the rickshaw Page 45 of 74 R/CR.A/516/2012 JUDGMENT and nothing as stated by him had occurred. The witness has denied that no one had a sword, dharia or knife as stated by him. He has denied that he was falsely stating that the others had sticks with them. The witness has denied that when he reached there, the incident was over and he had not seen it with his own eyes. He has denied that there was cross-fight and hence, he could not say as to who had assaulted whom. The witness has deposed that Bhura had a knife while Merubhai had nothing. Rameshbhai had nothing. Bhagwanbhai had nothing. On the side of Merubhai, no one had anything and they were repairing the tempo. The opposite side had come with weapons and they came near the rickshaw and started assaulting them.
23.2 In his cross-examination, it has further come out that when he caught hold of Merubhai, his clothes had not been stained with blood because he had caught him from behind. Merubhai's stomach had been bandaged with a handkerchief and the handkerchief was stained with blood. The witness is not aware as to exactly how many days after the incident the police had recorded his statement.
24. PW-20 Kanubhai Vikrambhai has been examined at Exhibit-110. The witness has deposed that he was the P.S.O. at the Rajula Police Station. He has deposed that on 13.7.2007 at 13:00 hours, he was in-charge as a P.S.O. and in the meanwhile, at 17:30 hours, Mulubhai came with a written complaint, whereupon an offence was registered. Thereafter, the investigation of the case was handed over to Shri Jadeja. He has identified his signature on the first information report mark 3/3 which is exhibited as Exhibit-111. He has identified Page 46 of 74 R/CR.A/516/2012 JUDGMENT the yadi mark 3/2 which was sent along with the complaint which is exhibited as Exhibit-112.
24.1 In his cross-examination, the witness has admitted that in the first information report Exhibit-111, the names of the accused as well as the complainant are not written. He has stated that the yadi Exhibit-112 is regarding a janva jog entry, wherein the names of the accused are not written. The witness has stated that he has no personal knowledge about the complaint.
25. PW-21 Krushnadas Somjibhai has been examined at Exhibit-116. This witness has deposed that he was discharging duties as P.S.O. at Bhavnagar "A" Division Police Station on 13.7.2006 when a janva jog entry No.1125/2006 was received. The witness has stated that he had personally recorded the complaint of injured Bharatbhai Merubhai Gujaria, resident of Khera, Taluka Rajula at Ward No.7 of Bhavnagar Sir T. Hospital. The incident having taken place within the jurisdiction of the Rajula Police Station, the papers were sent to the Rajula by the P.S.O., "A" Division. The witness is shown the first information report Exhibit-37 and he has stated that the same is in the handwriting of his writer. In his cross-examination, it has come out that Bharatbhai Merambhai has lodged the first information report and hence, he had recorded the same and that there was no question of choosing the informant.
26. PW-22 Ranjitsinh Hanubha Jadeja has been examined at Exhibit-120. This witness is the Investigating Officer who has deposed that on 13.5.2006, he was discharging duties at the Rajula Police Station, when the first information report being I-
Page 47 of 74R/CR.A/516/2012 JUDGMENT C.R. No.121/2006 for the offence under section 307 of the Indian Penal Code, was received from the Bhavnagar Hospital, whereupon he had taken the charge of the investigation. A cross case had been registered vide C.R. No. I-120/2006 and since both the offences have arisen out of the same incident, he had drawn a panchnama of the scene of offence in relation to C.R. No.I-120/2006 and had kept it with the investigation papers. The panchnama is produced at Exhibit-42. The witness has deposed that he had recorded the statements of the witnesses and after having gathered sufficient evidence against the accused, he had arrested them and had seized the clothes worn by them and the weapons used by them at the time of the incident. The muddamal was sent to the F.S.L. for the purpose of analysis together with a forwarding letter. After finding sufficient material against the accused, a charge-sheet came to be submitted.
26.1 In his cross-examination, the witness has admitted that both these cases had been investigated by him and P.S.I. Shri Chanchiya. He has admitted that he had recorded the statement of Merubhai Bijalbhai after he was discharged from the hospital. Merubhai was in the hospital from 12.7.2006 to 26.7.2006. He has admitted that he had not recorded his statement during the period when Merubhai was in the hospital from 12.7.2006 to 26.7.2006. He has admitted that he had arrested Merubhai Bijalbhai on 5.9.2006 and on the same day, he had recorded his statement. He has admitted that the reason why Merubhai Bijalbhai was assaulted has not been revealed during the course of his investigation. The witness has stated that the reason shown in the first information report is that the informant's father Merubhai Bijalbhai, having been Page 48 of 74 R/CR.A/516/2012 JUDGMENT elected as a Member of the District Panchayat, the opposite side, viz. the accused in this case belonging to the opposite party, there was ill-will between the parties. He has admitted that Merubhai Bijalbhai was discharged from the hospital on 26.7.2006 and on the same day, the Executive Magistrate had recorded his statement (dying declaration). He has admitted that in the dying declaration Exhibit-93, it has been stated that Bhurabhai Kalubhai's son and Rambhai Lunabhai's son and Kalubhai Lunabhai's son, whose names he does not know. He has admitted that when the names of the accused are not clear, a test identification parade before the Magistrate is necessary. He has admitted that the incident has taken place at a distance of fifty to sixty feet from Merubhai Bijalbhai's office.
27. PW-23 Naranbhai Karsanbhai has been examined at Exhibit-126. The witness has deposed that on 14.7.2006, he was in-charge of Rajula Police Station. In the meanwhile, upon the investigation of Rajula Police Station I-C.R. No.121/2006 for the offence under sections 307, 323, 324, etc. of the Indian Penal Code being handed over to him, he had gone to Bhavnagar Sir T. Hospital and had carried out panchnama of the physical condition of the injured Merubhai Bijalbhai between 15:15 to 16:00 hours. Thereafter, he had recorded the statements of Bhagwanbhai, Rameshbhai, Malabhai, Babubhai, etc. and had arrested accused Sava alias Savji and Naval alias Navin and had drawn a panchnama in that regard. He had recorded the statements of witnesses Narsinhbhai Rambhai, Jesalbhai Rambhai, etc., who were giving the statements in consonance with the first information report. He had also sent a yadi for recording the dying declaration of the Page 49 of 74 R/CR.A/516/2012 JUDGMENT victim.
27.1 In his cross-examination, the witness has admitted that Exhibit-75 is the panchnama of the physical condition of Merubhai Bijalbhai. He has admitted that in the panchnama Exhibit-75, it has been recorded that the shirt has been misplaced somewhere and has not been seized. He has stated that he had sent the yadi for the dying declaration. When the dying declaration was to be recorded, he was not present there. He has denied that during the course of investigation, only statements which were in consonance with the complaint had been recorded. The witness has denied that the panchnamas were prepared while sitting in the office and the signatures of the panchas were obtained thereon. He has denied that despite the fact that sufficient evidence was not available, he had wrongly arrested the accused. The witness has denied that on account of the political pressure, the statements were recorded as stated by him. He has denied that he has recorded all the statements incorrectly and none of the witnesses or panchas had said anything before him. The witness has denied that after reading the complaint, he had called the witnesses and the panchas in his own manner and had obtained their signatures and prepared the statements and the panchnamas. He has denied that he had not visited the scene of offence.
28. In the backdrop of the above evidence, the points that arise for determination are:
(i) Whether the prosecution has proved that there was an unlawful assembly and that the respondents in Criminal Appeal No.870 of 2012 were the members of such Page 50 of 74 R/CR.A/516/2012 JUDGMENT unlawful assembly?
(ii) Whether the trial court has rightly convicted Bhurabhai Kalubhai Bariaya, appellant in Criminal Appeal No.516 of 2012 for the offence punishable under section 307 of the Penal Code and sentenced him to undergo imprisonment for ten years and fine of Rs.1000/- and in default of payment of fine to undergo further imprisonment for two months?
(iii) Whether the respondent No.6 Bachu Ram Baraiya had inflicted a blow with a sword on Bhagwanbhai's back and thereby, committed the offence under sections 323 and 324 of the Indian Penal Code?
29. Point No.1: As regards the formation of an unlawful assembly, from the testimonies of the witnesses, it emerges that insofar as the first incident where the accused are alleged to have assaulted Rameshbhai Malabhai is concerned, PW 6 Bhagwanbhai and PW 7 Merubhai, both of whom are injured eye-witnesses as well as PW 10 Rambhai Samranbhai Shiyal have referred to the presence of only three of the accused viz., Savji, Bhura and Bachu, and PW 19 Narshibahi Bholabhai Gujaria has referred to the presence of only two of the accused, namely, Bhuro and Savji; whereas the informant PW 3 Bharatbhai Merubhai has referred to the presence of all the seven accused namely Bhura Kalu, Savji Kalu, Bachu Ram, Naval Ram, Jivraj Ram, Kalubhai Lunabhai and Rambhai Lunabhai. Thus, majority of the witnesses, including both the injured eye-witnesses have deposed as regards the presence Page 51 of 74 R/CR.A/516/2012 JUDGMENT of only three of the accused in the incident relating to Ramesh Mala. Therefore, the fact regarding the presence of all the accused in the first incident as stated in the first information report as well as in his deposition by the informant PW 3 Bharatbhai, does not find support in the testimonies of the other witnesses. Under the circumstances, false implication of four of the accused by the informant in the incident wherein Ramesh Mala is alleged to have been assaulted cannot be ruled out. Therefore, it cannot be said that the prosecution has proved the presence of all the seven accused at the scene of incident at the time when Rameshbhai Malabhai was assaulted.
29.1 A perusal of the testimony of PW 7 Merubhai Bijalbhai, who is an injured eye witness reveals that while in his examination-in-chief the witness has referred to all the accused having assaulted him, in his cross-examination, it has been elicited that except for Bhura no other accused had assaulted him. Insofar as Bhagwanbhai Chitharbhai is concerned, in his cross-examination, it has been clearly brought out that except for Bhura and Bachu, no one had assaulted him. Thus, insofar as the two injured persons are concerned, except for Bhura and Bachu, no one had inflicted any blows on him. Under the circumstances, there does not appear to be any active involvement of the other accused in the offence in question. Thus, the prosecution has failed to establish beyond reasonable doubt the involvement of any accused, other than Bhura and Bachu Ram, in the offence in question. In these circumstances, it cannot be said that the prosecution has proved the formation of an unlawful assembly. Point No.1 is answered accordingly.
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30. Point No.2. Insofar as the charge relating to the injury caused to Merubhai, is concerned, the same is principally against accused Bhura Kalu who is alleged to have inflicted a blow with a knife on the stomach of the Merubhai Bijalbhai, first informant's father and caused injuries and tried to murder him. Insofar as the other accused are concerned, the charge against them is that they have aided and abetted each other and committed the offence punishable under section 307 read with section 149 of the Indian Penal Code. As discussed hereinabove, the charge under section 149 of the Penal Code has not been established by the prosecution. Hence, the scope of inquiry relates to the charge against Bhura Kalu regarding the injuries caused to Merubhai.
30.1 Insofar as the conviction of the appellant Bhura Kalu for the offence under section 307 of the Penal Code is concerned, it may be noted that the trial court has convicted him for this offence by holding that accused had caused grievous injury to Merubhai Bijalbhai which if not treated within time, could have resulted in his death. The trial court, however, has held that the prosecution has not proved that the accused had caused the injuries to Bhagwanbhai beyond reasonable doubt. The prosecution has challenged the acquittal of the other co- accused for the offences under sections 307, 323, 324, 504, 147, 148 and 149 of the Indian Penal Code and under section 135 of the Bombay Police Act. However, though the trial court has convicted accused No.7 Bhurabhai Kalubhai only for the offence under section 307 of the Penal Code and acquitted him of the charge for the other offences, no appeal has been Page 53 of 74 R/CR.A/516/2012 JUDGMENT preferred against his acquittal in connection with those offences. It may be noted that insofar as the injury caused on Bhagwanbhai Chitharbhai is concerned, both Bhura Kalu (A-7) and Bachu Ram are alleged to have inflicted blows on Bhagwanbhai. Bhura Kalu has inflicted two blows on Bhagwan, one between his eyebrow and his nose, and the other on the upper left arm, whereas Bachu Ram has inflicted a blow with a knife on his back. In respect of this injury/incident, no appeal has been preferred against the acquittal of accused No.7 Bhura Kalu. Therefore, insofar as the appellant is concerned the scope of inquiry is confined only to the findings of the trial court holding the appellant guilty of the offence under section 307 of the Penal Code for the injury caused to Merubhai Bijalbhai.
30.2 Insofar as the injury sustained by Merubhai Bijalbhai is concerned, PW-7 Merubhai Bijalbhai Gujaria, who is an injured eye witness, has, inter alia, deposed that after the morning incident where Ramesh was assaulted, Bhura had returned home and had called four persons and come there. Accused Bhura had a knife in his hand; Naval had a sword in his hand; Sava had a dharia with him; and Rambhai, Kalubhai, Naval and Jivraj had sticks in their hands; and Bachu Ram had a sword in his hand. All of them together were demanding that Ramesh be taken out. Hence, he had said that he would take him out after the police arrive. Thereafter, they had got provoked and Bhura Kalu being incited, had inflicted a blow with a knife in the middle of his stomach. Thereafter, everyone started indiscriminately assaulting him. In his cross-examination, it has come out that after the knife blow was inflicted on him, he had Page 54 of 74 R/CR.A/516/2012 JUDGMENT become unconscious and does not know as to who had assaulted whom. In his cross-examination, it has further come out that except for Bhura, no one else had assaulted him, but he has clarified that at the instance of all the accused, Bhura had inflicted a knife blow on him. From the cross-examination of this witness, no omission or contradiction is brought out regarding the version given by him about accused Bhura having inflicted a knife blow on him. Thus, from the testimony of this witness, it is duly established that accused Bhura had inflicted a knife blow on his stomach.
30.3 The testimony of the injured eye-witness finds support in the testimonies of other eye witnesses namely, PW-3 Bharatbhai Merubhai who is the informant as well as Merubhai's son, PW6 Bhagwanbhai another injured eye- witness, PW 10 Rambhai Sarmanbhai Shiyal and PW 19 Narshibhai Bholabhai Gujaria all of whom have consistently stated that upon Merubhai refusing to take Ramesh Mala out of the room, Bhura Kalu had inflicted a knife blow on Merubhai's stomach.
30.4 PW-3 Bharatbhai has deposed that all the seven accused had come to the office at about 4:00 to 5:00 in the evening on 12.7.2006 and had started assaulting Rameshbhai Malabhai. At that time, all the accused had sticks in their hands. His father intervened and pacified them and pulled them apart. Thereafter, his father had reasoned with them and made them sit there. However, Bhura slipped away and after half an hour, returned with weapons. By way of a weapon, he had brought a knife. Sava came with a dharia, Bachu had a sword, Jivraj had a stick and others, viz., Navalbhai, Rambhai and Kalubhai had Page 55 of 74 R/CR.A/516/2012 JUDGMENT sticks. They came back and started quarreling and a knife blow was inflicted on the left side of his father Merubhai Bijalbhai's stomach, due to which his father fell down. In his cross- examination, it has come out that when the assault took place, his father had made Sava, Naval and Bachu sit there and the rest were roaming around there. From the testimony of this witness, it emerges that he had stated that his father was inflicted a knife blow on his stomach, but he has not stated as to who had inflicted such blow, nor had he stated any such fact before the Medical Officers when his father was admitted to the hospital. However, in the first information report, he has stated that Bhura Kalu had inflicted a blow with a knife on his father's stomach and in his examination-in-chief, he has admitted the facts stated in the first information report. Thus, through the testimony of this witness, it has been established that Bhura Kalu had inflicted a blow with a knife on his father's stomach.
30.5 PW-6 Bhagwanbhai Chitharbhai has deposed that they had gone to Merubhai's office, where Bhura, Savji and Bachu were demanding that Ramesh be taken out of the office and Merubhai was trying to reason with them. Thereafter, Bhura and Sava sat there. Bhura inflicted a blow on Merubhai's stomach with a knife and he also inflicted a blow on the lower part of his (the witness's) forehead between eyebrow and his nose as well as on his left upper arm and flung him in the sewer. In his cross-examination, the witness has admitted that at the Mahuva Government Hospital, they had not informed the doctor about the incident and had not named the accused. In his entire cross-examination, no omission or contradiction has been brought out as regards the facts stated by him about Page 56 of 74 R/CR.A/516/2012 JUDGMENT the manner in which Merubhai was injured. Through the testimony of this witness, the prosecution has duly established that Merubhai was inflicted a sword blow on his stomach by accused Bhura.
30.6 PW-10 Rambhai Sarmanbhai Shiyal, who is an independent eye witness, has been examined at Exhibit-64. In his cross-examination, it has been elicited that he does not have good relations with the informant and his family members. Therefore, this witness would have no reason to depose in favour of the informant and his family members. This witness has, inter alia, deposed that the accused were demanding that Ramesh be taken out of the office and Merubhai refused to do so and said that he would not let them assault him there, whereupon Bhura took out a knife and inflicted a blow on Merubhai's stomach, due to which Merubhai fell down. Thereafter, Bharat and Narsi had caught hold of Merubhai and as the witness's house was close by, he had brought a towel and wrapped around his stomach. In his cross- examination, nothing has been brought out to contradict the version given by him in his examination-in-chief regarding the manner in which Merubhai was injured. The testimony of this witness, therefore, duly corroborates the testimony of Merubhai Bijalbhai and other witnesses.
30.7 PW-19 Narshibhai Bholabhai Gujaria who has been examined at Exhibit-107, has, inter alia, deposed that Bhura had told Merubhai to take Ramesh out of the office and Merubhai had said that he would not let him die in his office, whereupon Bhura had inflicted a knife blow on Merubhai's Page 57 of 74 R/CR.A/516/2012 JUDGMENT stomach. Hence, he had caught hold of him. In his cross- examination, nothing has been brought out to contradict the above facts stated by him in his examination-in-chief. Thus, the testimony of this witness duly corroborates the testimonies of the other eye witnesses.
30.8 The testimonies of the eye witnesses, further finds support in the medical evidence, viz. the testimonies of the Medical Officers at Sir T Hospital, Bhavnagar and the Mahuva Municipality Hospital viz. PW 1 Dr Jitendrakumar Harjivandas Ruparel and PW 2 Dr. Rajeshsing Vasantsing respectively. PW 1 has deposed that Merubhai's son Bharatbhai had given history to the effect that at 4 o' clock in the afternoon, Bhurabhai Kalubhai had inflicted a blow with a knife near Khera Ram temple. He has further deposed that the patient had sustained the following injury: "On the upper part of his stomach, in the middle of his chest, there was an incised wound on the left side. This wound was transverse and was 4 cms x 1 cm x 1 cm deep and was a stab wound. " The testimony of the Medical Officer is duly supported by the certificate Exhibit 16 which reads thus:
"This is to certify that Shri/Smt. Kumari Merubhai Bijalbhai of Khera - Rajula aged about __________ Year, came to this Hospital with / without police yadi of ______________________ at 10-12 P.M. on Date 12.07.06 on examination following injuries are found:-
H/o Alleged assaulted injury by knife by 4:00 P.M. by Bhurabhai at Khera near Ram Mandir. Pt is conscious vitals (N) Page 58 of 74 R/CR.A/516/2012 JUDGMENT L/E An incised wound on (lt) side upper part of Epigastrium oblique 4 cm x I cm x cavity deep. Exploratory Laparotomy done.
Admitted from 12.07.06 to 26.07.06".
According to my opinion This injury may be occurred by Sharp instrument & can be recovered within two weeks if no complication arises. "
30.9 PW 2 Dr. Rajeshsing Vasantsing has deposed that on 12.6.06 he was discharging duties at the Mahuva Municipality Hospital. During that time, at 8:05, Merubhai Bijalbhai Gujaria, age 40 years, resident of Kherawala was brought by Bharatbhai Merubhai. The patient's relative Bharatbhai had informed that half an hour prior thereto, there was a scuffle at Khera village and he had been wounded with a knife. The patient was unconscious. Upon examining him, the following injuries could be seen:
Injury No.1 there was a knife wound on the patient's stomach above the navel. Its measurement was 2 cms long and 2 inches deep. The patient was bleeding a little. The blood was oozing from the injury. The injury was fresh."
The patient was examined by the Civil Surgeon who found that the injury was very grievous injury and hence, he was immediately referred to the Sir T. Hospital, Bhavnagar.
30.10 Thus, the medical evidence duly supports the ocular evidence. Through the testimony of the above witnesses, the Page 59 of 74 R/CR.A/516/2012 JUDGMENT prosecution has, therefore, duly established the charge against the appellant Bhurabhai Kalubhai, viz., that he had inflicted a blow with a knife on the stomach of the informant Bharatbhai Merubhai's father, Merubhai Bijalbhai Gujaria and accordingly, committed the offence punishable under section 307 of the Penal Code. The trial court, therefore, did not commit any error in convicting the appellant for the offence punishable under section 307 of the Indian Penal Code. Insofar as the quantum of sentence awarded by the trial court is concerned, the same shall be considered hereinafter. Point No.2 stands answered accordingly.
31. Point No.3: This point relates to the injuries caused to Bhagwanbhai. In this regard the trial court has framed Point No.2, viz. whether the prosecution proves that the accused had indiscriminately assaulted Ramesh and Bhagwanbhai with weapons and caused simple and grievous injuries and thereby, committed the offence punishable under sections 323 and 324 of the Indian Penal Code. Insofar as the incident relating to Ramesh is concerned, the evidence on record reveals that Ramesh Mala has not been examined as a prosecution witness, nor is there any medical evidence to prove that he had sustained such injuries. The testimonies of the eye witnesses reveals that except for PW3 Bharatbhai, all the other witnesses have referred to the presence of only two or three of the accused at the time of the incident wherein Ramesh is alleged to have been assaulted. Therefore, the presence of the other accused in that incident has not been established. Considering the overall evidence that has come on record, this court is of the view that the prosecution has failed to adduce sufficient evidence to establish that Ramesh Page 60 of 74 R/CR.A/516/2012 JUDGMENT Mala had sustained any injuries in the first incident and that such injuries had been caused by the accused.
31.1 Since this point relates to the acquittal appeal, before adverting to the evidence in this regard, it may be germane to refer to the findings recorded by the trial court while acquitting the accused so as to ascertain as to whether such findings are perverse to the record of the case.
31.2 Insofar as the injuries sustained by PW-6 Bhagwanbhai Chitharbhai are concerned, the trial court has in paragraph 2 of the impugned judgment and order, has recorded that in the first information report Exhibit-37, Bharat Gujaria has alleged that Bhagwanbhai was at a distance from their office, when Bhurabhai, Savabhai, Jivrajbhai, Rambhai, Bachu Ram and Naval Ram caused injuries with weapons like sword and dharia on Bhagwanbhai's back, due to which Bhagwanbhai having sustained grievous injuries fell down and those people went away. In short, as per the allegations made in the first information report, accused Bhurabhai, Savabhai, Jivrajbhai, Rambhai, Bachu Ram and Naval Ram had inflicted injuries with sword and dharia on Bhagwanbhai's back and in this regard, in the charge Exhibit-4, it has been stated that on the same date, time and place, the accused with a view to fulfill their unlawful object, wielded weapons like sticks, knives, dharia and sword and with the use of such weapons, indiscriminately rained blows on Bhagwanbhai and voluntarily caused hurt to him and by aiding and abetting each other, the accused committed the offence punishable under sections 323 and 324 read with section 149 of the Penal Code.
Page 61 of 74R/CR.A/516/2012 JUDGMENT 31.3 The trial court has further recorded that upon examining the oral evidence on record, it is necessary to take into consideration the testimony of Bhagwanbhai Chitharbhai who has been examined at Exhibit-45. He has deposed that the incident took place one and a half years ago at 5 o'clock in the evening and Bhura had inflicted a blow with a knife below his forehead between his eyebrow and nose and another blow with a knife on his left arm and had flung him into the sewer. Bachu had a sword and he had struck him on his back and the others had weapons like dharia, sword and sticks and they had assaulted him. In his examination-in-chief, he has further stated that he had taken treatment at the hospital at Bhavnagar for six to seven days. He has identified the weapons. In his cross-examination, he has admitted that he was an accused in the cross case. Bachu had a sword, Sava had a dharia, Naval had a stick and Jivraj, Kalu and Rambhai also had sticks. He has clearly admitted that he was not assaulted with sticks. This witness has been assaulted only by Bhura and Bachu and no one else. Moreover, he has stated that there were pools of blood on the ground and that he was inflicted a blow with a sword in the back. The trail court has after appreciating the evidence of this witness, recorded that in his examination-in-chief, he has alleged that Bhura, Sava, Rambhai, Jivraj, Bachu, Naval had assaulted with weapons like sword, dharia and sticks, whereas in his cross-examination, he has admitted that only Bhura and Bachu had assaulted him and no one else. In terms of the allegations in the examination- in-chief, Bhura had inflicted knife blows between his eyebrow and nose as well as on the left upper arm and Bachu had inflicted blow with a sword, whereas other accused had inflicted blows with sticks, sword and dharia. However, in the Page 62 of 74 R/CR.A/516/2012 JUDGMENT complaint Exhibit-37, there is no such clear allegation. In the complaint Exhibit-37, it is only stated that Bhagwanbhai had sustained grievous injuries on his back with sword and dharia. However, such allegation is not supported by Bhagwanbhai Chitharbhai in his testimony Exhibit-45.
31.4 The trial court has referred to the testimony of Bharatbhai and his credibility is sought to be impeached with reference to the first information report. In the opinion of the court, to the extent the testimony of Bharatbhai is inconsistent with the contents of the first information report, the trial court was justified in relying upon it.
31.5 The trial court has thereafter referred to the testimony of PW-7 Merubhai Bijalbhai, who is a hear-say witness as he had lost consciousness after he was assaulted and has stated that he had heard that Bhagwanbhai was assaulted by Bachu Ram.
31.6 The trial court has thereafter referred to the testimony of Rambhai Sarmanbhai observing that he has deposed that Bhura had inflicted blow with a knife above Bhagwanbhai's eye and his upper arm and Bachu Ram had inflicted a blow with a sword on his back. In his cross-examination he has stated that he was watching from a distance and when the fight assumed dangerous proportions, he fled from there and does not know what happened thereafter. In his cross-examination he has stated that Bhura had inflicted blows on Meru and Bhagwanbhai and he had not seen others being injured. The trial court has recorded that according to this witness Bhura Page 63 of 74 R/CR.A/516/2012 JUDGMENT had inflicted a blow above the eye and on the upper arm of Bhagwanbhai and Bachu Ram had inflicted a blow with a sword on his back. But if one sees the evidence on this case, namely the FIR Exhibit 37 there is no such allegation and all that is stated is that Bhagwanbhai was injured on the back with sword and dharia. Hence the fact regarding Bhura having inflicted a blow above Bhagwanbhai's eye and on his upper arm with a knife and Bachu Ram having inflicted a blow on his back appears to be doubtful.
31.7 The trial court has further observed that in this case witness Narshibhai Bholabhai has been examined as an eye witness at Exhibit 107. On a perusal of the evidence of this witness there is no direct evidence regarding who had caused injuries of Bhagwan Chithar. Therefore, his testimony does not support the prosecution case regarding Bhura having caused injuries with a knife on Bhagwanbhai's eyebrow and on his shoulder and that Bachu Ram had inflicted him a blow with a sword on his back.
31.8 The trial court has thereafter referred to the medical evidence regarding the injuries sustained by Bhagwanbhai and has opined that while from the testimony of Dr. Jitendrakumar Harjivandas Ruparel the injuries are proved; however, from the evidence of eye witnesses there is no supporting evidence to show that Bhura had caused the injury on the eyebrow and upper arm and Bachuram had caused the injury on the back with a sword. The trial court has recorded that the fact regarding Bhagwan Chithar having sustained an incised wound on the left side of his back is supported by the medical Page 64 of 74 R/CR.A/516/2012 JUDGMENT evidence Exhibit 12, but the fact regarding such injuries having been caused by Bachu Ram with a sword does not find support in the testimonies of the eye witnesses and such injuries are not mentioned in the FIR Exhibit 37. Similarly the trial court has referred to the testimony of Dr. Rajeshsing Vasantsing and held that though the injuries are proved the fact regarding who has caused such injuries does not find support from the evidence of the eye witnesses as well as the first information report Exhibit-37.
31.9 Thus, the trial court has tested the testimonies of all the witness on the anvil of the allegations contained in the FIR lodged by Bharatbhai. At this juncture it may be germane to refer to the decision of the Supreme Court in Ajmer Singh v. State of Punjab, (1977) 1 SCC 659:
"7. There can be no doubt that Mehar Singh PW 4 was an eyewitness of the incident. It is true that in the first information report Ex P.A. it was stated by Bachan Singh PW 3 that appellant Ujagar Singh fired a gun shot at Mehar Singh which hit him on the left side of his chest near the shoulder, but he stated in the trial court that Mehar Singh ducked and the shot missed him, and that appellant Chanan Singh gave a spear blow on the left front side of his chest. Counsel for the appellants has tried to make much out of this difference in the version given in the first information report and the evidence during the course of the trial, and has urged that the Investigating Officer also recorded that the chest injury of Mehar Singh was a gunshot injury. It has been argued that this must have been done after questioning Mehar Singh about the nature of the injury and that the discrepancy discredits the evidence of Mehar Singh. We are not impressed by this argument. The first information report was made by Bachan Singh PW 3, and it could not be utilised for the purpose of discrediting the statement of Mehar Singh. Moreover nothing has been elicited in the cross-examination of Page 65 of 74 R/CR.A/516/2012 JUDGMENT the Investigating Officer to show that he had questioned Mehar Singh before recording that his injury had been caused by a gunshot. It has to be appreciated that Bachan Singh left for the police station within a few minutes of the occurrence and if he or the Investigating Officer had really questioned Mehar Singh about the nature of his injury, he would not have falsely stated that it was a gunshot injury when it was really a spear injury of the same magnitude. There is therefore no occasion for us to reassess the evidentiary value of Mehar Singh's statement when, as has been stated, the High Court has held it to be convincing and has taken the view that it would be safe to rely on it insofar as the participation of the appellants in the crime is concerned."
31.10 Viewed in the light of the above decision, the FIR could not have been made the basis for impeaching the credibility of witnesses other than the first informant. From the findings recorded by the trial court it is manifest that it has independently not found the witnesses to be not credible, but considering the FIR as a basis has impeached the credibility of the witnesses. As can be seen on a plain reading of the testimonies of PW 3 Bharatbhai Merubhai, PW 6 Bhagwanbhai Chitharbhai and PW 10 Rambhai Sarmanbhai Shiyal, all of whom are eye witnesses and PW 6 being the injured eye witness, all have consistently stated right from the beginning that Bhura Kalu had inflicted blows with a knife below Bhagwanbhai's eyebrow and on his upper arm and Bachu Ram had inflicted a sword blow on his back. While there may be a slight discrepancy as regarding the manner in which Bachu Ram inflicted the blow, there are no major inconsistencies in the testimonies of the witnesses. Moreover, the medical evidence clearly corroborates the ocular version and establishes that Bhagwanbhai had in fact sustained corresponding injuries in terms of the ocular evidence. The trial Page 66 of 74 R/CR.A/516/2012 JUDGMENT court, however, has observed that though the medical evidence shows that Bhagwanbhai had sustained knife injuries below his eyebrow and on his upper arm and a sword injury on his back, the testimonies of the eye witnesses do not support the medical evidence. Evidently, therefore, the finding recorded by the trial court is perverse to the record of the case warranting interference by this court.
31.11 Thus, the evidence on record shows that the prosecution has duly established that Bhagwanbhai was inflicted blows with a knife between his eyebrow and his nose as well as on his upper arm by Bhura and a blow with a sword on his back by Bachu Ram. Insofar as the involvement of the other accused persons is concerned, Bhagwanbhai, in his cross-examination has admitted that he had not been assaulted by anyone except Bhura and Bachu Ram. Since, the prosecution has not challenged the acquittal of Bhura Kalu for the offences other than the offence under section 307 of the Penal Code, his complicity in the offence is not required to be gone into. From the above discussion, it is manifest that the prosecution had duly proved that accused Bachu Ram have inflicted a blow with dangerous weapon like sword respectively and caused simple injury to Bhagwanbhai. Accused Bachu Ram is therefore, guilty of the offence punishable under section 324 of the Indian Penal Code. Point No.3 is answered accordingly.
32. Coming to the question of quantum of sentence awarded by the trial court, as noticed earlier, during the pendency of the appeal, the parties namely the appellant Bhura Kalu and the opposite side have amicably ironed out the differences between them. Injured witness Merubhai Bijalbhai Gujaria, his Page 67 of 74 R/CR.A/516/2012 JUDGMENT son Bharatbhai Merubhai, injured witness Bhagwanbhai Chitharbhai and Rameshbbhai Malabhai Gujaria, have filed affidavits in Criminal Appeal No.516 of 2012 stating that they are residing at Khera in Rajula taluka and are earning their livelihood by doing labour work. That on account of a minor exchange of words between the parties the appellant has been convicted of the offence under section 307 IPC and sentenced to ten years imprisonment and fine of rupees 1000/- and in default of payment of fine to undergo further simple imprisonment for two months against which the appellant has preferred the appeal. It is further stated that the appellant belongs to their community and is related to them and the leaders of their community as well as family members have intervened and brought about a settlement between the parties. On account of the settlement they have already received money towards medical expenses from the appellant. They have entered into a compromise with the object that in future peace is maintained. They have willingly entered into the compromise and not on account of any threat or pressure and that their family members and leaders of their community have brought about an amicable settlement. The appellant Bhurabhai Kalubhai and the acquitted accused viz. Bachubhai Rambhai Bariaya, Savjibhai Kalubbhai Bariaya, Jivrajbhai Rambhai Baraiya, Rambhai Lunabhai Bariaya, Navinbhai Rambhai Baraiya and Kalubhai Lunabhai Baraiya, have also filed similarly worded affidavits. Similar affidavits have also been filed by the parties in Criminal Appeal No.870 of 2012. Thus, during the pendency of the appeals to maintain peace between the parties an amicable settlement has been arrived at between the parties. The learned advocate for the accused has submitted that in view of the compromise arrived at Page 68 of 74 R/CR.A/516/2012 JUDGMENT between the parties, the sentence imposed upon accused Bhurabhai Kalubhai be reduced to the period undergone. In support of his submission, he has placed reliance upon the decision of the Supreme Court in Rajendra Harakchand Bhandari v. State of Maharashtra (supra), wherein though the offence under section 320 of the Penal Code is not compoundable, in view that both the parties at present had cordial relations and the incident was almost two decades old, reduced the sentence to the period undergone without disturbing the conviction. Reliance was also placed upon the decision of the Supreme Court in the case of Gopal Singh v. State of Uttarakhand (supra) wherein it has been held thus:
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect -- propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would Page 69 of 74 R/CR.A/516/2012 JUDGMENT be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.
19. A court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of the court in such situations becomes a complex one. The same has to be performed with due reverence for the rule of law and the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori notion.
20. Keeping in view the aforesaid analysis, we would refer to the view in respect of sentence this Court had imposed under Section 324 IPC, regard being had to the concept of appropriate sentence. In Dharma Pal v. State of Punjab, while converting the Page 70 of 74 R/CR.A/516/2012 JUDGMENT conviction under Section 307 IPC to Section 324 IPC, this Court thought it appropriate to sentence the convicts to one year's rigorous imprisonment. Be it noted, the Court observed that though the injuries inflicted by the appellants therein were somewhat serious, yet the conviction under Section 307 IPC was not made out.
21. In Merambhai Punjabhai Khachar v. State of Gujarat7, while this Court took note of the fact that the injury was caused by pellet, the ingredients of Section 307 IPC were not satisfied and, accordingly, the Court converted the offence under Section 324 and sentenced the accused to undergo RI for one year and pay a fine of Rs 1000, in default, SI for one month.
22. In Para Seenaiah v. State of A.P.8, regard being had to the obtaining factual matrix therein, the sentence of rigorous imprisonment of one year under Section 324 IPC with a fine of Rs 1000 and, in default, imprisonment for three months was held to be justified.
23. At this juncture, we may repeat at the cost of repetition that imposition of sentence, apart from the illustrations which have been stated to be mitigating factors would depend upon many a other factors which will depend/vary from case to case. The legislature in respect of an offence punishable under Section 324 IPC has provided punishment which may extend to three years or with fine or with both. The legislative intent, as we perceive, is to confer discretion on the judiciary in imposition of sentence in respect of such offence where it has not provided the minimum sentence or made it conditional. We have already highlighted that the discretion vested cannot be allowed to roam in the realm of fancy but is required to be embedded in rational concepts based on sound facts.
24. In the case at hand, the doctor has not stated the injury to be grievous but on the contrary, he has mentioned that there is no fracture and only a muscle injury. The weapon used fits in to the description as Page 71 of 74 R/CR.A/516/2012 JUDGMENT provided under Section 324 IPC. The occurrence has taken place almost 20 years back. The parties are neighbours and there is nothing on record to show that the appellant had any criminal antecedents. Regard being had to the totality of the facts and circumstances, we think it appropriate that in the obtaining factual score, the sentence of rigorous imprisonment of one year under Section 324 IPC would be adequate. That apart, we are inclined to direct that the appellants shall pay a sum of Rs 20,000 towards compensation as envisaged under Section 357(3) of the Code to the victim. The said amount shall be deposited before the learned trial Judge who shall disburse the same in favour of the victim on proper identification.
25. With the aforesaid modification in the sentence, the appeal stands disposed of."
33. Examining the facts of the present case in the light of the above principles propounded by the Supreme Court, the incident has taken place in the year 2006 and a period of almost twelve years has elapsed since then. In the interregnum the parties have amicably settled by the differences between them on account of intervention of their family members and leaders of their community. Therefore, it would be in the best interests of all concerned and to maintain peace and harmony in the community that a lenient view is taken insofar as the sentence awarded by the trial court is concerned. The appellant has been convicted for the offence under section 307 of the Penal Code, and this court after appreciating the evidence on record has not thought it fit to interfere with the order of conviction. For the offence under section 307 of the Penal Code the punishment provided is imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt Page 72 of 74 R/CR.A/516/2012 JUDGMENT is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned. Thus, while the section provides for punishment by way of imprisonment and fine, it does not provide for any minimum sentence. Therefore, if the court, having regard to the facts and circumstances of a case deems it proper it may reduce the sentence to below ten years to the extent it deems just and proper. In this case, a perusal of the jail record of the appellant, shows that he has undergone sentence of only one year and twenty five days and that when he was enlarged on temporary bail on 27.07.2012, he had absconded for 1828 days and was arrested by the police on 04.08.2017. Thus, considering the period undergone and the conduct of the appellant, the court does not deem it fit to reduce the sentence to the period undergone as requested by the learned advocate for the appellant. Nonetheless, having regard to the compromise arrived at between the parties, to ensure that peace is maintained and there is no further rancour between the parties, the court deems it just and proper to reduce the sentence to a period of three years including the period already undergone.
34. For the foregoing reasons, Criminal Appeal No.516 of 2012 partly succeeds to the following extent. While maintaining the conviction of the appellant under section 307 of the Penal Code, the sentence is reduced to imprisonment for three years. The sentence of fine is maintained.
35. Criminal Appeal No.870 of 2012 partly succeeds. While upholding the acquittal of the remaining accused, accused Page 73 of 74 R/CR.A/516/2012 JUDGMENT Bachubhai Rambhai is convicted for the offence under section 324 of the Penal Code. The accused is required to be heard on the question of sentence, hence the matter be listed for hearing on 16th July 2018.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 74 of 74