Gujarat High Court
State Of Gujarat vs Shankerji Chaturji And Ors. on 8 October, 1996
Equivalent citations: (1996)3GLR755
JUDGMENT R.K. Abichandani, J.
1. This acquittal appeal was admitted and is heard against the accused Nos. 1,3, 5, 6, 14 to 17,21 and 22 as it was not pressed against rest of the respondents as recorded in the admission order dated 4-3-1986.
This appeal is directed against the acquittal of these accused persons who were tried for the offences under Section 147, 148, 149, 307, 323, 324, 325 and 337 of the Indian Penal Code.
2. The prosecution version is that on 10-9-1983, at about 9 or 9-30 A.M., the complainant Gandaji Thakor alongwith Jakshibhai Valjibhai Rabari, Raghunathbhai Khodabhai Rabari, Bhagwanbhai Nathabhai Rabari and Ranaji Jenaji Thakor had gone from village Moraiya to Bavla in a tractor driven by Vithalbhai, to sell 165 maunds of paddy which belonged to Harjibhai Nathabhai. They reached Bavla around 10-10.30 A.M. After selling the paddy, making some purchases and taking snacks, they started for the return journey from Bavla around 1-45 P.M. At that time driver Vithalbhai Chhotabhai Vasava was driving the tractor and the complainant Gandaji was sitting by his side and others were sitting in the trolly attached with the tractor. When they reached near village Pilupura, at around 3 P.M., they were intercepted by Thakors and Bharwads of Pipulura by placing their tractor on the road against the tractor of the complainant's side. They were around 60 to 70 in number, armed with 'dharias', 'kodalis', spades, spears, sticks and other weapons. The prosecution version is that at that time their assailants started pelting stones, one of which hit the driver Vithalbhai on his head. The tractor was, therefore, taken by the driver on the side of the road and it slided down the slope into a "chokdi". These persons, therefore, alighted from the trolly and statrted running to save themselves. According to the prosecution, 22 persons were identified from the assailants who were charged as the accused. These persons had caused serious injuries to Jakshibhai Valjibhai Rabari, Raghunathbhai Khodabhai Rabari and Bhagwanbhai Nathathai Rabari by deadly weapons as a result of which they fell down. They also caused injuries to Raghunathbhai, the complainant Gandaji and the driver Vithalbhai, who then escaped from that spot. It is alleged that Gandaji had witnessed the entire incident from behind a nearby bush. According to prosecution case, after attacking the injured persons, the assailants had run away. Thereafter, while the complainant was going towards their village Moraiya, he met one Maljibhai Govindbhai and Ramjibhai Thobanbhai coming in a tractor in which driver Vithalbhai and Ranaji Jenaji were also there. He also got into the tractor and they proceeded towards their village. They then met Harjibhai Nathabhai and Chandubhai driver in a matador who were coming from Ahmedabad. Thereafter, they went to the place of the incident where Jakshibhai, Raghunathbhai and Bhagwanbhai were lying with serious injuries in a ditch. These injured persons were then taken in the matador to the hospital at Sanand for treatment. The complaint was filed on the same day at 5-15 P.M., at Sanand Police station, i.e., within about 2 1/2 hours of the incident. Charge-sheet was submitted against 22 accused persons on 20-12-1983 in the Court of Judicial Magistrate, First Class, Sanand, for the aforesaid offences. As the offence under Section 307 of the Indian Penal Code was triable by the Sessions Court, the learned Magistrate, on 13-1-1984 committed the case to the Court of Session. The charge against the accused was framed on 23-4-1984 by the Sessions Court and all the 22 accused pleaded not guilty to the charge levelled against them.
3. The defence version was that there was prior enmity between the parties on account of a dispute in respect of the land known as "Moraiya Farm'. There were several cases filed by Harjivan Nathabhai, who is brother of Bhagwanbhai Nathabhai, against some of the accused persons and others and only some time back some of the accused persons and others were acquitted of the charges of Section 307 of the Indian Penal Code. According to the defence version, as the accused persons having been acquitted in all the cases filed against them, they are sought to be again falsely implicated in the present case because of the land disputes. It is contended that Harjibhai Nathabhai and Popatbhai Kalubhai were managing the Moraiya Farm and the disputes were generated because of their attidude. It is also the defence version that the Rabaris had beaten Natubhai and Chhotubhai of village Pilupura and there had been a quarrel between Natubhai and Chhotaji and their party on one side and the injured party on the other, and these accused persons have been falsely implicated at the instance of Harjibhai Nathabhai and Popatbhai Kalubhai.
4. All the six injured persons were examined besides other witnesses. On the defence side the accused No. 21 examined himself to bring on record the fact that there was previous enmity between the parties and disputes relating to Moraiya Farm and that some of the accused were held guilty in earlier cases filed by or at the instance of Harjibhai. According to him, he was not in the village at the time of the incident. The medical officers who had examined the injured persons were also examined and they have proved the certificates of injuries issued by them.
5. The trial Court held that it was not established by the prosecution that the accused persons and others were members of an unlawful assembly whose common object was to cause death of or grievous hurt to the witnesses Raghunathbhai Bhagwanbhai, Jakshibhai, Vithalbhai, Gandabhai and Harjibhai. On point No. 2 the trial Court held that it was not established by the prosecution that the accused persons armed with deadly weapons had assembled with a common object to cause grievous hurt to the injured persons. On point No. 3, it was held that the prosecution failed to prove that these accused persons with a view to achieve their common object made an attack with lethal weapons, as alleged in the complaint. It was further held that the prosecution did not establish that these accused persons, with a view to achieve their common object and being members of an unlawful assembly, caused grievous hurt to the witnesses Raghunathbhai, Bhagwanbhai and Jakshibhai by lethal weapons and attempted to cause their death by using sharp cutting weapons like dharia, bhala, etc. It was further held that the prosecution has failed to establish that these accused persons had in furtherance of their common object as members of the unlawful assembly, voluntarily caused grievous hurt to Jakshibhai, Raghunathbhai and Bhagwanbhai by giving stick blows. It was also held that the prosecution did not establish that in furtherance of common object of their unlawful assembly the accused persons caused injuries to Gandabhai and Vithalbhai or caused injury to Vithalbhai by pelting stones. The trial Court thus held that the charges against these accused persons, that as members of unlawful assembly they had in furtherance of their common object caused the injuries or had attempted to cause death of the three seriously injured witnesses was not established.
The trial Court, after referring to the evidence on record, found that at the time of the incident there was a big mob of about 60 to 70 persons who had attacked the complainant's side with deadly weapons like 'dharia', spears, sticks, 'kodalis' and spades and caused serious injuries to Jakashibhai, Bhagwanbhai and Raghunathbhai and injuries to Gandabhai and Vithalbhai. It was also held that there was dispute in respect of Moraiya Farm which was being managed by Harjibhai Nathabhai and Popatbhai Kalubhai, between Thakors and Bharwads of Pilupura of the ownership and managers of Moraiya Farm and there were previous criminal cases as well as civil cases filed by the parties. The trial Court also found that the injured witnesses were examined by Dr. Ajay N. Gandhi on 10-9-1983 between 4 P.M. and 5 P.M. It was noted that severe injuries were caused to Jakshibhai, Raghunathbhai and Bhagwanbhai as narrated by the doctors and stated in the certificates issued by them. Injuries were also caused to other witnesses. The trial Court found that the suggestion to the medical officer that all the injuries could have been caused by dragging persons on the ground or by dashing against an object was ridiculous and having regard to the nature of injuries and the parts on which they were caused, it was abundantly established that these injuries were caused during the attack by the mob. The trial Court in terms held that having regard to the seriousness of the injuries caused to Jakshibhai, Bhagwanbhai and Raghunathbhai there was no iota of doubt in holding that grievous injuries were caused and that there was an attempt to finish them off. The trial Court, however, in paragraphs 34 and 35 of its judgment gave reasons for discarding the version of the prosecution. It was held that if about 60 to 70 persons had attacked the injured persons they could never have remained alive. The fact that they survived would show that the incident had not occurred in the manner suggested by the prosecution. It was found that there was doubt created against the version, since the tooth of prosecution witness Raghunathbhai was recovered from trolly and blood marks were found in the trolly, while the injuries are said to have been caused after they all alighted from the trolly and were trying to run away. It was also held that there was no explanation as to what had happened to the soil on the clothes of the injured. Furthermore, the conduct of all the three witnesses who had escaped, coming back to the place of the incident unarmed, was not natural and acceptable. It was also held that version of two injured before the police constable who was on duty at the V.S. Hospital regarding the accused No. 3 having fired a gun shot was a sheer exaggeration. It was further held that some injured witnesses had deposed that they had become unconscious while they were found conscious when they were examined by the doctor. It was also held that it would be impossible for any person to escape from the mob of about 60 to 70 and, therefore, the story of escape of Vithalbhai, Gandabhai and Ranaji cannot be believed.
The trial Court came to the conclusion that it was not improbable that the accused were falsely implicated by the complainant's party in view of their past enmity and the disputes relating to Moraiya Farm. It was held that even if some of the 22 accused have been falsely implicated, that would create a situation warranting acquittal of all the accused. It will be thus seen that for the aforesaid reasons which are of a general nature, the trial Court has discarded the positive evidence of all the eye witnesses as regards the occurrence of the incident and the involvement of the accused persons in commission of the offence.
6. The learned Counsel appearing for the State submitted that there was reliable evidence on record to show the part played by the accused Nos. 1, 3, 5, 6, 14 to 17,21 and 22 in the assault which was committed on the injured persons. The evidence of eye witnesses, according to him, is fully supported by the medical evidence. It was submitted that the injured persons had deposed as to the assault and who had caused injuries to them. It was submitted that the complaint was filed within a couple of hours of the incident and there was no reason to believe that the injured persons were attacked by some other persons and not the accused as suggested by the defence. When there were serious injuries there was no reason for the injured persons to let go those who had actually caused injuries to them and implicate others. It was further argued that the reasons given by the learned trial Judge were of general nature and were not sufficient to discard the positive evidence on record. It is submitted that the prior dispute relating Moraiya Farm shows that there was a motive to the crime. The fact that the accused persons alongwith others had intercepted the complainant's party and attacked them with lethal weapons, shows that they had formed an unlawful assembly and that all the injuries were caused in furtherance of the common object of the members of such assembly. It was submitted that when unlawful assembly was established, it is immaterial as to which member caused a particular injury and each member would be liable for every injury caused in furtherance of the common object. It was, therefore, submitted that the offences with which these persons are charged are proved against them beyond any reasonable doubt.
7. The learned Counsel appearing for these accused persons contended that the conduct of the driver Vithalbhai and complainant Gandaji and Ranaji of returning to the place of the incident, unarmed and within few minutes of the assault, was unnatural and goes to the root of the matter because, in that event, the incident could not have occurred in the manner in which the injured witnesses have deposed about it. It was also contended that the fact that three persons were lying injured at the place of the incident and that they had not been finished off despite the large number of assailants, shows that the incident had not occurred the way in which it was alleged by the prosecution witnesses. It is submitted that the injuries would have been many more and much serious if 60 to 70 persons had, with lethal weapons, attacked them. It is also submitted that the fact that they remained alive though injured would show that the common object of the assailants could have been only to teach them a lesson and not to kill them and, therefore, the offence of attempt to commit murder under Section 307 of the Indian Penal Code was not made out. The learned Counsel was anxious to bring home this point in view of his submission that during the pendency of this appeal, the matter has been compounded and he is instructed to state that peace prevails between the rival groups and that their disputes relating to land have been sorted out. The learned Counsel has at the end of his arguments produced on record a writing dated 7-2-1995 which records that the disputes between the parties relating to land were resolved and the litigations which were pending in the tenancy Court, revenue Court and civil Court were all settled and that there was now no dispute between them and they are peacefully living. The learned Counsel, therefore, submitted that this Court should invoke its powers under Section 482 of the Criminal Procedure Code and give permission to the parties to compound the offences levelled against the accused persons. Relying upon the decision of the Supreme Court in the case of Mahesh Chand v. State of Rajasthcm and in the case of Bhupendra Singh v. State of M.P. 1981 Cr. LJ 751 and also on the decision of this Court (Coram: K.J. Vaidya, J.) in the case of Bharwad Rupabhai Bhalabhai v. State of Gujarat, 1994(1) GLH 369 and the decision of the Andhra Pradesh High Court in the case of Thathapadi Venkatalakshmi v. State of A. P. 1991 Cr. LJ 749, the learned Counsel submitted that even if some of the offences with which these accused persons are charged, i.e., Sections 147, 148 and 307 of I.P.C. are not compoundable under Section 320 of the Criminal Procedure Code, this Court can by invoking its inherent powers under Section 482 of the Criminal Procedure Code permit the compounding of these offences. As regards various other offences with which the accused are charged read with Section 149 of I.P.C, it is submitted that Section 149 of I.P.C. was not a substantive offence. Therefore, when substantive offences under Sections 323, 324, 325 and 326 are compoundable, these offences read with Section 149 would become compoundable. It is submitted that such harmonious construction would be adopted so that both the substantive offences as well as those substantive offences read with Section 149 of I.P.C. become compoundable. The learned Counsel further argued that the scope of acquittal appeal is limited and this Court should not interfere with the acquittal of the accused persons, because, the reasons given by the trial Court are also plausible. It is submitted that when two views are possible the accused should be given benefit of the view taken by the trial Court. In support of this contention, he has placed reliance on the decision of the Supreme Court in the case of Ajit Singh v. State of Gujarat, and in the case of Dhanna etc. v. State of M. P. JT 1996(6) 652. The learned Counsel further argued that infirmity referred to by the trial Court and other infirmities pointed out by him were all important factors which lead to the conclusion that the prosecution has failed to establish guilt of any of the accused persons beyond reasonable doubt. Amongst other factors the Counsel submitted that the conduct of two witnesses and the version of decoity and firearm being used by accused No. 3 was an exaggerated version which the prosecution had given up during the trial and it creates serious doubt over the prosecution version. It is submitted that prior enmity having been established the approach of the Court should be cautious in appreciating the evidence of the injured witnesses, for the reason that they were likely to falsely implicate the accused persons. It is submitted that according to the prosecution, three injured persons were lying in ditches and yet there was no evidence to show that the clothes of those injured persons were soiled in mud. On this basis, he submitted that the incident does not appear to have occurred at the place alleged or in the manner in which it was alleged. It was contended that the case of driver Vithalbhai and other witnesses was that when the assailants pelted stones, one stone hit Vithalbhai on his head and injury was caused due to that, while, the evidence of the medical officer of Sanand Hospital, Dr. Gandhi and the certificate issued by him about the injuries of Vithalbhai showed that there was an incised wound on the head of Vithalbhai which according to the medical officer could be possible by a sharp cutting instrument. It is submitted that in the medical certificate issued by Dr. Gandhi, it was stated that history of dharia blow was given by Vithalbhai. On the basis of this discrepancy it was contended that the very version of the prosecution regarding Vithalbhai sliding the tractor into the road side ditch on account of pelting of stones and the injuries sustained by hitting of stone on his head, was created and the incident has not occurred in the manner narrated by these witnesses.
8. The alternative contention raised by the learned Counsel was to the effect that if the offence under Section 307 of the I.P.C. is not established and his submission regarding invoking powers under Section 482 of the C.P.C. is not accepted for permitting all the offences to be compounded, the other offences which were not compoundable were only under Sections 147 and 148 of the I.P.C. and these offences may be dealt with leniently even if they are held to have been committed.
9. It would be appropriate to take note of the nature of injuries which were caused to the injured witnesses on 10-9-1983 at the time of the incident. From the deposition of Dr. Ajay N. Gandhi, P.W. 3, Ex. 37, and the certificates issued by him at Exhibits No. 38 to 43, the injuries which were found on the injured persons were as under:
1. Jakshibhai Valjibhai: (Medical certificate Ex. 38)
1. Incised wound of about 4" x 1" x 1/4" over left parietal region, about 2" above the left ear.
2. Punctured wound of about 1" x 1/2" over exterior aspect of lower end of left forearm.
3. Punctured wound of about 1" x 1/2" over lateral aspect of lower end of left arm.
2. Gandabhai Mohanbhai (Medical certificate Ex. 39)
1. Incised wound of about 2 1/2" x 1" x 1/4" over posterior aspect of left elbow joint.
3. Bhagwanbhai Nathabhai (Medical certificate Ex. 40)
1. Incised wound of about 4" x 1" x 1/2" over mid occipital region posteriorly.
2. Incised wound of about 3 1/2" x 1" x 1/2" over mid frontal region.
3. Incised wound of about 1" x 1/4" over right lower eyelid region.
4. Swelling of right lower eyelid and upper eyelid present.
5. Sub-conjactival haemorrhage in right eye present.
6. Incised wound of about 2" x 1/2" over upper part of left eyebrow laterally.
7. Incised wound of about 1" x 1/2" over area of ramus of right side of mandible.
8. Incised wound of about 1" x 1/2" over lateral aspect of lower end of right arm.
4. Ranaji Jenaji (Medical certificate Ex. 41)
1. Tender swelling of about 1 1/2" diameter over lateral aspect of left elbow joint.
5. Raghunathbhai Khodabhai (Medical certificate Ex. 42)
1. Incised wound of about 3" x 1" x 1/4" over right side of forehead just above the medial angle of right eyebrow, wound vertically situated.
2. Incised wound of about 3" x 1" x 1/4" over left side of forehead, just above the mid of forehead, medial angle of left eyebrow.
3. Tender swelling of about 1/2" diameter over lateral aspect of right elbow joint.
4. Puncture wound of about 1" x 1/2" over right lumber region posteriorly.
6. Vithalbhai Chhotabhai (Medical certificate Ex. 43)
1. Incised wound of about 3" x 1" x 1/2" over left occipital region posteriorly.
From the medical evidence of the medical officer of Sanand Hospital and the certificate issued by him, it becomes clear that Jakshibhai had been inflicted a serious injury possible by a dharia over the left parietal region above the left ear. There was a punctured wound possible by a spear on the left forearm and another punctured wound on the left arm. The injury over left partiental region was 4" long. Such an injury on head by a sharp cutting instrument like dharia would indicate that the assailant did not want just to teach a lesson to the injured but wanted to inflict severe injury on his head which could have proved fatal. Incised wound of 4" long over mid-occipital region and the incised would of 3 1/2" long over mid-frontal region on Bhagwanbhai Nathabhai were also very serious injuries inflicted by a sharp cutting weapon like dharia and could not have been intended only to teach him a lesson. The incised wound over the right lower eyelid region and incised wound over the upper part of the left eyebrow were also serious injuries inflicted by a sharp cutting instrument and the nature of these injuries would again suggest that they were not intended only to teach him a lesson. The injured Raghunathbhai Khodabhai had a 3" long incised wound over the right side of his forehead just above the medial angle of the right eyebrow and the wound was vertically situated. He was also inflicted an incised wound of 3" long over the left side of his forehead just above the mid of forehead, medial angle of left eyebrow. These injuries caused by a sharp cutting instrument like dharia were obviously intended to cause extreme possible harm and not just to teach them a lesson as was sought to be suggested on behalf of the accused persons. Multiple injuries caused to the injured persons with lethal weapons are pointer to the clear intention of the accused to cause murder of these seriously injured persons. The fact that they escaped from death cannot be used to contend that there was no attempt to murder the said persons. These injuries having regard to their seat and the manner in which they were caused and also the weapons used by which they were caused clearly show that the assailants had made an attempt to murder the persons of the complainant's party who were seriously injured, i.e., Jakshibhai, Bhagwanbhai and Raghunathbhai.
The medical officer of Vadilal Sarabhai Hospital, Surgery Department Dr. Jitendra Kunwarjibhai Jadav, P.W. 16, Ex. 66, had examined Raghunathbhai and Jakshibhai. He had noted that Raghunathbhai had a fracture of tibia and fibula of right leg and compressed fracture over spinal cord. He noted that injured Jakshibhai had also a fracture on his right hand in the third metacarpal. This doctor had also noted other serious injuries on these two injured witnesses and issued certificate at Exhibits No. 67, 68 and 69 in connection with Raghunathbhai, Bhagwanbhai and Jakshibhai respectively. He has denied the suggestion that these multiple injuries could be caused by a fall or dashing against an object. Even the learned trial Judge has held that the injuries were of serious nature and could have proved fatal. Jakshibhai had a fracture of third metacarpal as also noted by Dr. Jatin Manuprasad, P.W. 14, Ex. 62. The certificate issued by him is at Ex. 63. He has deposed that the injuries of the nature found on the delicate part of the head of Jakshibhai could result in death.
11. The evidence of the complainant Gandaji and other injured witnesses clearly disclosed that in the morning at about 9 - 9.30 A.M. on the day of the incident, that is, 10-9-1983, these persons had gone to Bavla for selling paddy belonging to Harjibhai and they reached Bavla around 10 - 10.30 A.M. There is a suggestion in the cross-examination of the witness Harjibhai to the effect that police was posted for protecting paddy crop. The injured witnesses had gone to Bavla to sell 165 maunds of paddy in the market of Bavla. Thereafter, they started for their village from Bavla at about 1-45 P.M. and the incident had occurred at about 2-30 P.M. near Pilupura sign-board just before their own village Moraiya. All these witnesses have clearly deposed that when they reached near Pilupura village they were intercepted by Thakors and Bharwads of Pilupura and there were 60 to 70 persons armed with lethal weapons like dharia, 'kodali', spear, stick, etc. When these persons were waiting with arms to intercept the complainant's party, it is evident that they had come to know that the complainant and his party were to return from Balva side around that time. All these witnesses have clearly stated that by putting the tractor across them they were intercepted by the mob and that there was pelting of stones followed by attack on them by use of various deadly weapons. The fact that the assailants were waiting on the road to intercept the complainant's party with lethal weapons and as soon as the complainant's party reached that spot they attacked, clearly establishes the existence of an unlawful assembly with a common object to commit offence of causing grave injuries to those persons by force of violence. The common object of the members of the assembly was to attack the complainant's party with lethal weapons. The manner in which the attack was made and the nature of injuries and the parts of body on which the injuries were caused on the unarmed Jakshibhai, Raghunathbhai and Bhagwanbhai clearly indicate that the common object of the unlawful assembly was to cause such bodily injuries to these persons of the complainant's party which are likely to be resulted in death.
From the deposition of Gandaji it transpires that when they were intercepted by the mob, stones were thrown and one stone had hit the driver Vithalbhai on his head and the tractor was, therefore, taken on the side of the road and it slided into a ditch. He has further stated that the accused No. 6, Becharji Mohanji, while he was trying to run away, gave a dharia blow on his left hand. It is stated that he had identified nearly 20 persons who were armed with dharia, stick and other weapons. He has further stated that after the attack and injury caused to him he had gone and hidden himself behind a nearby bush. He has further stated that these persons had attacked Bhagwanbhai, Jakshibhai and Raghunathbhai causing them injuries and after their attack the assailants had gone away. In his cross-examination, there is a suggestion made to him about the disputes between the parties over the Moraiya Farm. It is stated that after their return to the spot alongwith Harjibhai and others they had carried Jakshibhai, Bhagwanbhai and Raghunathbhai and put them in the matador for taking them to the hospital and at that time they become conscious. Then they were taken to the hospital at Sanand. This fact is born out from the medical evidence which discloses that they were examined by the medical officer at Sanand between 4 and 5 P.M. on that very day. The version of the complainant stands corroborated by his complaint, Ex. 34, in which also he has stated that while returning for Moraiya they were intercepted near Pilupura by a mob of 60 to 70 persons who had put their tractor across their way on the road to obstruct them, pelted stones and seriously injured Jakshibhai, Bhagwanbhai, Raghunathbhai and also injured him and driver Vithalbhai. In the complaint he had clearly named the accused No. 6, Becharji Mohanji, having given him a dharia blow on his left hand. This injury is corroborated by the medical evidence. Even in the complaint he had said that after causing injuries to Jakshibhai, Bhagwanbhai, Raghunathbhai, the assailants had gone away. He is consistent on the point that the assailant had gone away after seriously injuring the aforesaid three persons. There is no cross-examination on this aspect of this witness. The contention on behalf of the accused persons that it was unnatural on the part of the injured Gandaji and driver Vithalbhai to have returned to the place of the incident unarmed soon after the incident is, therefore, misconceived, because, Gandaji had known that the assailants had gone away after causing serious injuries to Jakshibhai, Bhagwanbhai, Raghunathbhai and, therefore, his primary concern would have been to return to the place alongwith others so that state of these three persons could be known and they could be given medical aid.
The complainant, Gandaji, has deposed that he could identify 20 persons named by him. He has stated that he had seen from behind a nearby bush that these persons were attacking Jakshibhai, Bhagwanbhai, Raghunathbhai who were injured and that thereafter they had run away. There is nothing brought out in the cross-examination of the complainant which could cut against his version about the participation of the accused persons and the manner in which the incident had occurred. He was an injured witness and the incident having occurred during broad day light would have seen the assailants most of whom were known to him. We, however, note that he has not mentioned the name of accused Nos. 21 and 22 in the complaint or in the deposition but has stated that others were there. In such simultaneous assault by numerous persons on several witnesses it is quite likely that each of the witnesses makes a mental note of the persons by whom he was attacked and who had attracted his attention. It is, therefore, likely in such cases that a particular injured may name some of the assailants while other injured persons may name only those who may have assaulted them. The injured persons in such situation cannot be expected to have a photographic image of all those persons who made the attack and, therefore, mere fact of non-mentioning name of some of the accused by one of the injured witness cannot go against mentioning of the name of that accused by another injured witness.
The deposition of Vithalbhai, Ex. 35, who was driving the tractor of the complainant's party at the relevant time clearly shows that he was injured by a stone thrown on his head. He has narrated the incident on the same lines as has been narrated by the complainant. He says that he had identified from amongst the assailants the accused Nos. 1, 2, 3, 4, 14, 15, 16 and 17. However, this appeal was not pressed at the admission stage against the accused Nos. 2 and 4. This witness has in terms stated that tractor of the accused No. 6, Becharji Mohanji, was placed on the road to intercept them. He has stated that initially there was pelting of stones as a result of which the tractor slided in a ditch. He has stated that the assailants were armed with weapons like spear, 'kodali', stick, etc. He has supported the complainant's version that when they had returned at the place of the incident with Harjibhai they found that the three injured persons were lying in an unconscious state and they were taken from that place to the hospital in a matador. This witness has stated that when the assailants attacked them by pelting stones and throwing "dhokas" (log of wood used for washing clothes) he was injured on his head and on his thumb. The learned Counsel for the accused has argued that though according to this witness he was injured on his head on account of pelting of stones, the nature of injury certified by the doctor shows that it was an incised wound and the history given in the certificate also is to that effect. According to him, therefore, this witness does not inspire confidence at all. The fact that this witness was injured on his head is amply borne out. The seat of injury was left occipital region, posteriorly. When Dr. Gandhi opined that this injury was possible by a sharp cutting instrument he did not agree with the suggestion that the contused wound on the head may look like an incised wound. It is significant to note that Dr. Jagdip Janakrai Pandit, P.W. 5, Ex. 45, had also examined Vithalbhai Chhotabhai on the same day evening at 6-30 and he had noted that there was one contusion (crush injury) on the right parietal temporal region of this witness, Vithalbhai. There was no cross-examination of this doctor on this aspect. It will be noted that the injured witnesses were going in the tractor attached with a trolly when the assailants started their attack initially by pelting stones. All the witnesses have, in terms, stated that Vithalbhai was hit by a stone on his head. Though Dr. Gandhi did not agree that the contused wound on the head of Vithalbhai may look like an incised wound, he does not appear to be correct on this aspect when Dr. Pandit has deposed that there was a contused wound on the head of Vithalbhai and that part of evidence is in consonance with the positive evidence of all the six injured witnesses, including Vithalbhai to the effect that Vithalbhai was injured by a stone which hit on his head. Dr. Pandit's finding would, therefore, be in consonance with the possibility that occasionally a wound produced by a blunt weapon may split the skin and may look like an incised wound when inflicted on tense structure, such as scalp. We are, therefore, satisfied that this witness Vithalbhai Chhotabhai was injured on his head on the day and at the place of the incident when the assailants started pelting stones and intercepted them. It is not possible, therefore, to accept the contention on behalf of the accused that the discrepancy in the nature of injury of Vithalbhai's head brought out from the opinion of Dr. Gandhi goes to the root of the prosecution case and falsifies it.
The injured witness Jakshibhai, P.W. 4, Ex. 44, supports the prosecution version that when they reached the place of the incident on 10-9-1993 after selling paddy at Bavla they were attacked by a mob of 60 to 70 persons who started pelting stones and "dhokas" and intercepted them. He identified from amongst these assailants accused Nos. 1, 2, 3, 5, 6, 7, 10, 14, 15, 17, 21 and 22. According to him, accused No. 17 gave a "dharia" blow which caused an injury on his left hand. He has stated that accused No. 14 gave a stick blow on his head. He has also stated that accused No. 21 gave a stick blow on his right hand which had resulted in fracture. He has further stated that the second blow with dharia was given to him by accused No. 17 which caused injury on his left elbow. Accused No. 1, according to him, gave a stick blow on his left hand and accused No. 22 also gave a stick blow on his back. According to him, accused No. 16 gave a stick blow on his waist. These injuries are supported by medical evidence. All the material particulars of the prosecution case are supported by this witness. His deposition clearly shows that from amongst the accused persons against whom present appeal is admitted, accused Nos. 1,3, 5, 6, 14, 15, 17, 21 and 22 were among the assailants and had participated in the attack as narrated by him.
The injured witness Raghunathbhai Khodabhai, P.W. 9, Ex. 53, has also given the same version about the occurrence of the incident as is stated in the complaint and the evidence of other injured witnesses. He had identified amongst the assailants accused Nos. 1, 3, 5, 6, 14, 15, 16, 17, 21 and 22. He has stated that the accused No. 3 had given a dharia blow on his forehead and another dharia blow on his head. He has also stated that the accused No. 1 gave a stick blow on his teeth. He has further stated that accused No. 5 gave a spear blow to him which caused bleeding. He has further stated that the accused No. 14 gave a stick blow on his right leg which caused fracture. Accused No. 1 had also given another stick blow on his right hand. He has stated that because of all these severe injuries he lost consciousness. On his version of the incident and identifying the assailants he had not been shaken at all in the cross-examination. Except some minor omissions about the injury caused by accused No. 1 by stick on his face there is no material contradiction brought out in his cross-examination. He has reiterated in the cross-examination that the accused No. 1 had given him a stick blow and his tooth was broken. The learned Counsel had argued that tooth was found from the trolly attached to the tractor and from that one should infer that this witness is not speaking the truth and even if a stick blow is given by the accused No. 1 we should hold that the incident had not occurred in the manner in which the prosecution witnesses have narrated it. We do not think that much significance should be attached to this small discrepancy regarding the tooth having been found from the trolly and not from the place where this witness was lying injured. From the atmosphere which would be generated by such an attack there may be some minor discrepancies of this nature. But on such basis the entire prosecution version narrated by these injured eye witnesses cannot be brushed aside. We do not know whose tooth was found from the trolly and whether the tooth which was found from the trolly was really the tooth of the injured Raghunathbhai Khodabhai who lost his tooth because of the stick blow. The injured witnesses did not remain immobile when the assault commenced and during their movement the assailants were causing various injuries on them. Therefore, much significance cannot be attached to some tooth being found from the trolly and not from the ground.
The next injured witness Bhagwanbhai Nathabhai, P.W. 10, Ex. 54, has also stated that while they were near the sing-board of Pilupura on their way to their village Moraiya they were intercepted by 60 to 70 persons and at that time, the accused party stopped their tractor across the road and obstructed the tractor in which the complainant and his party were travelling. Accused No. 6 Becharji Mohanji was on the tractor. At that time stones were pelted on them causing injury to Vithalbhai on his head as a result of which the tractor had slided down by the side of the road. It is stated that the accused No. 3 gave a dharia blow on his head and the accused No. 6 had also given a dharia blow. It is further stated that the accused No. 5 gave a spear blow below his eye while accused No. 14 gave a stick blow. The accused No. 15, according to him, gave a stick blow on his left thigh. It is stated that all of them have committed the assault and he had identified some persons amongst the assailants and that the accused persons were among the assailants. He has stated that assailants were having lethal weapons like dharia, kodali, spear, sticks. His version regarding injuries caused to him is supported by the medical evidence noted hereinabove. In his cross-examination he has stated that he does not know as to what happened to the tractor of the accused No. 6, Becharji Mohanji, after the incident. He has denied the suggestion that he had become unconscious on receiving a stick blow. This witness supports the version of the prosecution in all material particulars and from his evidence it is clear that accused Nos. 1, 3, 5, 6, 14, 15, 17 and 21 were amongst the assailants and they had committed the assault in the manner narrated by him.
The injured Ranaji Jenaji, P.W. 7, Ex. 50 supports the prosecution version on the initial part of the incident till he ran away from the place of incident. He in terms has stated that the accused No. 6, Becharji Mohanji, and others were amongst the 50 to 60 assailants. After he received stick injury he did not wait on the spot to see as to what happened. Soon after the incident he alongwith Harjibhai, Vithalbhai and Gandaji had come to the place of incident and taken the three injured to the hospital.
12. It is a settled legal position laid down by the Supreme Court in the case of Lalji v. State of U. P., that Section 149 of I.P.C. makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence when the acts constituting the offence are done in pursuance of the common object of the unlawful assembly. Once the acts of a person fall within the ingredients of this section, the question that he did nothing with his own hands would be immaterial. The basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly with the requisite common object or knowledge. Thus, when all these ten accused persons are proved to have formed an unlawful assembly and the offences as alleged against them are committed by the members of that assembly in prosecution of its common object are such as the members of the assembly knew to be likely to be committed in prosecution of that object, each one of these accused persons, who at the time of committing of that offence was a member of the said unlawful assembly, would be guilty of all such offences. In fact, the prosecution in such cases would have no obligation to prove as to who actually did the offensive act or which of the members did which of the offence. In the instant case, the common object of the unlawful assembly was to assault the complainant's side with lethal weapons and the manner in which the assault was done and the nature of injuries would clearly show that the members of the unlawful assembly, including these accused persons, knew that the offence with which they were charged were likely to be committed in prosecution of their common object and that there was possibility of murder and/or grievous hurt and hurt being caused to the persons of the complainant's party. The reasons given by the Sessions Court are too general to be used for discarding the positive evidence of the eye witnesses supported by medical evidence. The fact that there was previous enmity should never have been used as a ground for acquitting the accused persons in the face of the clear evidence of the eye witnesses and medical evidence. The seriously injured witnesses would never have allowed the real culprits to escape on the score of any past enmity with others. In fact, the past enmity would provide a motive for such an assault. There is a suggestion in the complainant's cross-examination on behalf of the accused persons that earlier most of these very accused persons were prosecuted for the offence under Section 307 of the I.P.C. but were acquitted, and that suggestion is accepted by the complainant. Therefore, many of these accused persons in the past were prosecuted for offence under Section 307 of I.P.C. and were acquitted. There obviously was, therefore, enmity between the parties but that need not lead to the conclusion that all the accused persons were falsely implicated. The fact that the injured persons have been able to identify only some of the accused persons from amongst the mob of about 50 to 60 persons also does not go against the prosecution because the injured witnesses are not expected to have photographic memory of the entire event. If sufficient material is not found against any of them, it cannot be inferred that others against whom there is positive evidence are being falsely implicated or that eye witnesses who have attributed to them the role which they had played in the assault should not be relied upon qua them. We find that the entire approach of the learned Sessions Judge is perverse and against the positive evidence of the eye witnesses with the medical and other evidence on record. Even the discrepancy regarding the accused No. 3 having used a 'tamancha', a story recorded by a constable who was on duty at the V.S. Hospital when the injured persons were taken there for treatment, does not find place in the evidence of any of the witnesses recorded before the Court as to the use of 'tamancha' by accused No. 3, and, they have not stated even in their statements recorded during the investigation by the investigating officer about any such use of firearm. There appears to be some mistake in attributing 'tamancha' to accused No. 3 in the statement recorded by the police constable at the hospital. In this context, it will be noted from the documents which are produced by the defence in the deposition of the accused No. 21 who has examined himself, that in an earlier case which was filed against most of these accused persons including the accused No. 3 there was an allegation that the accused No. 3 had used a 'tamancha'. Therefore, when one of the seriously injured persons is said to have attributed 'tamancha' to accused No. 3 in a statement recorded by the police constable one cannot jump to the conclusion that the entire prosecution version is false. We are told that the accused No. 3, Manaji Chaturji, has passed away. We were told this during the hearing and we requested the learned Counsel appearing on his behalf to produce copy of his death certificate. However, till this time it is not forthcoming. But the learned Counsel asked us to take his statement about death of accused No. 3 during the pendency of this appeal to be correct, and we find no reason not to rely upon that statement. Therefore, the proceedings abates against the accused No. 3.
13. We do not think that minor discrepancies or inconsistencies which have been pointed out on behalf of the accused persons should be used for discarding the entire positive evidence of the prosecution pointing at the guilt of these accused persons. We are, therefore, unable to accept the contention canvassed on behalf of the accused persons that the infirmities pointed out create a reasonable doubt against the prosecution version benefit of which should go to the accused persons. There is no reason to discard all the eye witnesses on the ground that there was past enmity. The alibi put up by the accused No. 21 in his deposition is obviously false in view of the positive evidence showing his participation. The deposition of the eye witnesses supported by the medical evidence would clearly establish that the assailants - including these accused Nos. 1, 3, 5, 6, 14 to 17, 21 and 22 had formed an unlawful assembly with a view to intercept the complainant's party and attack them with lethal weapons like dharias, spear, kodali, sticks, etc., and with a view to achieve their common object various injuries were caused to the injured witnesses some of which were with dharia blows on their heads which were of such nature that had the injured persons died as a result thereof the result would have been an offence of murder. It is, therefore, clear from the totality of circumstances that the common object of these 10 accused persons being members of an unlawful assembly was to cause injuries to the complainant's party with intention or knowledge which under the circumstances had resulted in the death of the three seriously injured witnesses, i.e., Jakshibhai, Bhagwanbhai and Raghunathbhai they would have been guilty of murder, as the members of the unlawful assembly which included these ten accused persons had inflicted the aforesaid serious injuries with sharp cutting weapons and also by sticks and other weapons and pelting of stones in furtherance of their common object to cause such injuries to the complainant's party. These members of the unlawful assembly are proved to be guilty of rioting, being armed with deadly weapons which used as weapon of offence were likely to cause death and having used violence in order to cause injuries to the complainant's party. They have in furtherance of their common object caused hurt, grievous hurt and injuries with sharp cutting instruments to the injured witnesses and at the commencement of the assault the members of the unlawful assembly of persons including these ten accused had caused hurt by rashly pelting stones and 'dhokas' on the complainant's party which was calculated to endanger their life and personal safety. In our opinion, therefore, the prosecution has, beyond any reasonable doubt, established the guilt of these ten accused and that they have committed the offences under Sections 147, 148, 307, 323, 324, 325, 337 all read with Section 149 of the Indian Penal Code.
14. This leads us to the contention raised on behalf of these accused persons that the matter has been compromised between these accused persons and the injured witnesses. The compromise which was entered into on 7-2-1995 has been placed on record on 1-10-1996 by the learned Counsel for the accused persons. In the first paragraph of the writing it is stated that there has been a compromise and reconciliation between the complainant and other injured persons (who are named) and the respondents (accused Nos. 1, 3,5,6, 14,17,21 and 22 who are also named). In the next paragraph it is stated that there were disputes regarding tenancy rights in respect of the agricultural lands of Moraiya since many years between the parties and there were cases going on in tenancy Court, revenue Court, civil Court etc. Thereafter, on intervention of certain good people all the disputes regarding land have been resolved and all the litigations have been settled. In the last paragraph of this writing it is stated that in the above circumstances there is now no dispute between the parties. It is stated that the residence of the parties are in the same locality and there is now no animosity between them and compromise has taken place. In these circumstances appropriate order may be passed in the appeal by accepting this compromise. The learned Counsel appearing for the accused persons has heavily relied upon this compromise and has stated that he is aware that this compromise has taken place.
15. Before we advert to the question as to whether the High Court can in exercise of its inherent powers under Section 482 of the Criminal Procedure Code, permit a non-compoundable offence to be compounded under Section 320 of the Code, it would be material to note that under Section 320 of the Code the offences which are compoundable and the persons by whom offence may be compounded are mentioned. In Sub-section (1) of Section 320 of the Code, a table is given showing the offences under the I.P.C. which may be compounded and in column 3 the persons by whom such offences may be compounded. In Sub-section (2) of Section 320 of the Code, a table is given showing the offences punishable under the specific provisions of the I.P.C. which can be compounded and in column 3 it is shown as to by whom such offences may be compounded with permission of Court. The writing which is produced on record does not mention as to which offence has been compounded. In fact, it does not mention that any offence is compounded and it only mentions that the disputes regarding Moraiya land have been settled by the parties and that there is no animosity between them now. The persons who can compound the offence in the present case, the injured persons, have nowhere stated in the writing that they have compounded any of the offences which were levelled against these accused persons. The learned Counsel for the accused, however, submitted that this compromise was obviously intended to compound all the offences levelled against these accused.
Apart from the fact that the nature of the writing which is produced on record does not clearly disclose as to which offences were compounded or as to whether any of the offences were compounded, we are of the opinion that for the reasons that follow the offences which are not compoundable cannot be permitted to be compounded by the Court in exercise of its inherent powers under Section 482 of the Code.
It would be noted from the table under Sub-section (2) of Section 320 of the Code that only certain offences can be compounded with the permission of the Court and it is not as if any of the offences in the I.P.C. could be compounded. The enumerated offences are offences against person and property. The offences against public tranquillity are dealt with in Chapter VIII of I.P.C. under Sections 141 to 160. The offences against public tranquillity are excluded from the table under Sub-section (2) and therefore, none of the offences affecting public tranquillity can be compounded either with or without permission of the Court. The reason is not far to seek. The legislature has clearly viewed that offence against public tranquillity is a matter of concern for the State having a serious impact on the law and order problem and it is not case of an individual dispute between the parties to be sorted out between them with or without the intervention of the Court. That is why, even a simple offence of affray which is punishable under Section 160 of the I.P.C. with imprisonment of either description for a term which may extend to one month only has also not been made compoundable being offence against public tranquillity while making offence of simple hurt under Section 323 of the I.P.C. to be compoundable under Sub-section (1) of Section 320 of the Code even without the intervention of the Court.
16. In our opinion, the High Court in exercise of its inherent powers under Section 482 of the Code cannot legislate and cannot include any offence in the tables enumerated under Sections 320(1) and (2) of the Code, which is excluded therefrom by the legislature. This would be more so when there is a specific provision under Sub-section (9) of Section 320 of the Code that no offence shall be compounded except as provided by this section. We do not think that when there is clear statutory embargo, the High Court can cull out powers to permit the parties to compound any of the offences which cannot under the law be compounded from the inherent powers. The inherent powers under Section 482 of the Code do not permit any Court to act arbitrary as to its jurisdiction. The High Court cannot act according to its whims or caprice while exercising its inherent powers which be exercised to prevent abuse of the process of any Court, to secure ends of justice and to give effect to any order made under the Code. In our view, the rule of law is firmly established that when statutory powers are conferred upon the Court specifically, the Court cannot, by relying upon its inherent jurisdiction, extend the scope of such power. We, therefore, hold that in view of the express bar provided in Sub-section (9) of Section 320 of the Code, by exercising inherent powers under Section 482 of the Code the High Court cannot permit composition of any offence which is not permissible under Section 320(2)(9) of the Code.
17. These accused persons have been found guilty of the offence under Section 307 read with Section 149 of the I.P.C. and the offences under Sections 147 and 148 of I.P.C. which are non-compoundable offences. These accused persons have been found guilty being members of unlawful assembly and having caused grievous injuries in furtherance of their common object to cause death of some of the seriously injured persons and the injuries were caused with dangerous weapons and other injuries to others. Therefore, the offence under Sections 323,324,325 and 337 which by themselves would have been compounded would not be compounded when they are charged in context of Section 149 of the I.P.C. on the footing that these offences were committed by these accused persons as members of unlawful assembly for achieving their common object. The offence under Sections 324, 325 and 337 by themselves are compoundable with permission of the Court but these offences read with Section 149 become distinct offences because they would then become offences against public tranquillity having been committed by the members of the unlawful assembly. Therefore, these offences read with Section 149 of I.P.C, in our view, would also not be compoundable because they are offences committed by members of the unlawful assembly and offences against public tranquillity not intended to be covered by the provisions of Sub-section (2) of Section 320 of the Code. Even the offence under Section 323 read with Section 149 of I.P.C. would not be compoundable because it is a distinct offence from an offence under Section 323 of I.P.C. (simpliciter) and in this regard we are supported in our view by the decision taken by the Full Bench of Allahabad High Court in the case of Sabbir Khan v. Mohd. Ismail, 1972 Cr. LJ 666 holding that Section 149 of the I.P.C. creates a separte and distinct offence and, therefore, an offence under Section 323 read with Section 149 of I.P.C. is an offence distinct from an offence punishable under Section 323 of I.P.C. and is not compoundable.
18. The learned Counsel for the accused has placed heavy reliance on the decision of the Supreme Court in Mahesh Chanel's case (supra) in contending that the offence under Section 307 of I.P.C. though not compoundable under Section 320 of Cr. P. C, could be allowed to be compounded as was done by the Supreme Court. The Supreme Court in Mahesh Chand's case (supra) noted that the accused were convicted under Section 307 of I.P.C. which was not compoundable under the law. However, treating the matter as a special case in view of the peculiar circumstances of the case, the Supreme Court held that it would be proper if the trial Court shall permit the parties to compound the offence and directed the trial Court accordingly. Reliance was also placed on the decision of the Supreme Court in Bhupendra Singh's case (supra) where the accused persons were convicted for the offence under Section 307 read with Section 149 of I.P.C. by the High Court. In that case, the Supreme Court altered the conviction of the appellants to one under Section 324 of I.P.C. and allowed the composition. Therefore, it was not as if the offence under Section 324 read with Section 149 of the I.P.C. was allowed to be compounded. In fact the decision of the Supreme Court indicates that it allowed the offence to be compounded only after altering the offence to one under Section 324 of I.P.C. from one under Section 324 read with Section 149 of I.P.C. which was held established by the trial Court.
In our opinion, reliance placed on behalf of the accused persons on these two decisions of the Supreme Court for persuading us to exercise inherent powers under Section 482 of the Code to permit the accused to compound the non-compoundable offence to be compounded is wholly misconceived. The powers of the Supreme Court are plenary more particularly in context of the provisions of Article 142 of the Constitution of India which lays down that the Supreme Court will have power to make any decree or order as may be found by it to be necessary for doing complete justice in any cause or matter pending before it. The nature of this Constitutional power of the Supreme Court differs vitally from the inherent powers of the High Court under Section 482 of the Code. When the Supreme Court in exercise of its plenary powers under the Constitutional provision permits composition of non-compoundable offences de hors Section 320 of the Code, that cannot be relied upon to invoke the High Court's inherent powers for making similar orders which would fly in the face of the specific statutory embargo contained in Sub-section (9) of Section 320 of the Code. Therefore, reliance on the decisions of the Supreme Court on this aspect cannot be of any help to the accused persons. The learned Counsel also referred to the decision of the Supreme Court in the case of Y. Suresh Babu v. State of A. P. in which the Supreme Court allowed the offence under Section 326 of I.P.C., which is not compoundable under Section 320 of the Code, to be compounded. It will, however, be noted that the Supreme Court in terms directed that this case shall not be treated as precedent. This is obviously done because the Supreme Court was aware that the High Court or the Courts subordinate to it cannot allow such non-compoundable offences to be compounded.
19. In this context, we may refer to the decisions of the Supreme Court, having a direct bearing on this point, reported in the case of Union Carbide Corporation v. Union of India and in the case of State of Punjab v. Surinder Kumar . In Union Carbide Corporation's case (supra), the Supreme Court, while considering its powers under Article 142 of the Constitution of India in context of the statutory prohibition under Section 320(9) of the Code and other provisions, held that the powers of the Supreme Court under Article 142 of the Constitution of India in so far as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 of the Code or all of them put together. The power under Article 142 of the Constitution of India is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot ipso facto act as prohibition or limitation on the Constitutional powers under Article 142. In Surinder Kumar's case (supra) the Supreme Court while considering the ambit of Article 142 of the Constitution of India in terms held that it was not proper to suggest that if the Supreme Court had passed an order in the circumstances of a particular case, similar order can also be passed by the Supreme Court. It was held that the powers under Article 142 of the Constitution of India empowers the Supreme Court to make such orders as may be necessary for doing complete justice in any cause or matter pending before it which authority the High Court does not enjoy. The jurisdiction of the High Court is circumscribed by limitation discussed and laid down by the judicial decisions and it cannot transgress limits on the basis of whims and caprice which may vary from Judge to Judge. Thus, when there is a clear statutory embargo under Section 320(9) of the Code against permitting any offence not mentioned in table under Sub-section (2) of Section 320 of the Code to be compounded, the High Court would not be entitled to pass any order, which it thought fit in the interest of justice, which may be contrary to the said statutory provision.
20. The learned Counsel then submitted that even the High Courts, including this Court, have permitted compounding of non-compoundable offences. He placed reliance on the decision of the Andhra Pradesh High Court in the case of Thathapadi Venkatalakshmi's case (supra) to point out that the offence under Section 498-A of the I.P.C. which is non-compoundable was allowed to be compounded by resorting to the provisions of Section 482 of the Code. The learned single Judge of the Andhra Pradesh High Court relying upon the decision of the Supreme Court in Mahesh Chand's case (supra) held that in view of the larger interest of the parties and the agreement between them to live a harmonious matrimonial life and to secure the ends of justice, the trial Court was directed to accord the composition of the offence. Heavy reliance was placed on this decision by the learned Counsel for these accused persons perhaps overlooking the decision of the Division Bench of the Andhra Pradesh High Court in the case of D, Jayalakshmi v. State, 1993 Cr. LJ 3162 in which the said decision of the learned single Judge of the Andhra Pradesh High Court in Thathapadi Venkatalakshmi s case (supra) was specifically overruled. The Division Bench in terms held that the view expressed by the learned single Judge in Thathapadi Venkatalakshmi's case (supra) granting permission to compound the offence under Section 498-A of I.P.C. pursuant to the settlement or compromise and understanding between the spouses can be accorded by the High Court under Section 482 of the Code was not justified to be used as a matter of course in each and every case. We are clear that there is no scope at all for invoking Section 482 of the Code for permitting non-compoundable offences to be compounded. Remedy, if any, lies with the legislature.
The learned Counsel for these accused persons placed reliance on the decision of the single Judge of this Court (Coram: K.J. Vaidya, J.) in Bharwad Rupabhai's case (supra) for pointing out that the offences punishable under Sections 3 and 7 of the Protection of Civil Rights Act, 1955 and Section 3(xiv) of the Prevention of Atrocities Act, 1989 which were not compoundable under Section 320(2) as they were not mentioned in the table under Section 320(2) were allowed to be compounded. Honourable Mr. Justice K.J. Vaidya, dealing with the question as to whether the High Court can exercise its inherent powers under Section 482 of the Code for permitting composition of the non-compoundable offence, has held that -
...though there is no express provision in either of the aforesaid two Acts, viz., the Civil Rights Act and the Atrocities Act, regarding composition of the offences, still however, invoking inherent powers under Section 482 of the Code, this Court declares that the Court is definitely empowered to compound the offence under the Civil Rights Act and the Atrocities Act, depending upon the facts and circumstances of that particular case.
It was further held that the inherent powers vested under Section 482 of the Code were not made available to Special Courts and if the parties desire composition of the offence and approach it then the concerned Court may accept the same for the limited purpose of composition as it would not be just to ask the parties to incur expenses and physical hardship for coming to the High Court. With respect, we are unable to agree with the above proposition of law propounded by the learned single Judge in Bharwad Rupabhai's case (supra), for the reasons which we have already given. The powers of the High Court under Section 482 of the Code can never be exercised de hors the specific statutory provisions and, therefore, they cannot be used contrary to Section 320(9) of the Code which specifically provides that no offence shall be compounded except as provided by this section.
The inherent powers if so exercised to permit uncompoundable offences to be compounded, would not only violate the provisions of Section 320(9) of the Code but also, in our opinion, would be against public policy. The offences which the legislature in its wisdom did not find proper to include in the list of compoundable offence are to be tried by the competent Court so as to take the matter to its logical conclusion. The offenders who have committed such offences are not allowed to escape by the aggrieved party agreeing to drop the prosecution. Any compromise which has the effect of dropping the prosecution in case of non-compoundable offence would, in our view, be illegal and contrary to public policy. We may profitably refer to illustration (h) under Section 23 of the Indian Contract Act, 1872 in this regard which lays down that every agreement of which the object or consideration is unlawful is void. The illustration runs as under:
(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.
Therefore, when non-compoundable offences are allowed to be compounded on the basis of an agreement between the parties which will have the effect of dropping the prosecution, the agreement would be void on the ground that its object is unlawful. Therefore, even for this reason, an offence against public tranquillity and other non-compoundable offences cannot be allowed to be compounded by invoking the provisions of Section 482 of the Code. Even the decision of the learned single Judge (Coram: D.C. Gheewala J.) dated 24-7-1984 in Criminal Appeal No. 1114 of 1980 upholding the acquittal of the offences under Sections 147, 148 and 323 read with Section 149 of the I.P.C. on the ground that the parties had settled the matter inter-se, does not lay down correct law and for the reasons we have already stated, we do not accept the ratio of that decision. We are, therefore, constrained to overrule the ratio of the decision of the learned single Judge (Coram: K.J. Vaidya, J.) in Bharwad Rupabhai 's case (supra) and the decision of the learned single Judge (Coram: D.C. Gheewala, J.) in Criminal Appeal No. 1114 of 1980 dated 24-7-1985 on this point and hold that the High Court cannot invoke the inherent jurisdiction under Section 482 of the Code for permitting non-compoundable offences to be compounded by resorting to that provision.
We may, here, refer to the decision of the Supreme Court which fortifies our view. The Supreme Court in the case of Ramesh Chandra v. A.P. Jhaveri, AIR 1973 SC 84 was considering the appeal against the decision of the Bombay High Court whereby Court set aside the order of acquittal made against the appellant in two cases and directed the trial Magistrate to proceed with those cases in accordance with law on the ground that it had permitted non-compoundable offences to be compounded. The Supreme Court in that case in terms held that though offence under Section 420 of the I.P.C. was compoundable the offence under Section 13 of the Maharashtra Ownership of Flats Act was non-compoundable. It was held that no valid permission could be granted for compounding an offence under Section 13 of the Maharashtra Ownership of Flats Act and the permission which was granted by the trial Court was invalid in its entirety. It is not permissible in such an event to sever the permission into two parts and to uphold it so far as the offence under Section 4201.P.C. is concerned and hold it to be invalid in respect of the offence under Section 13 of the Maharashtra Act. The Supreme Court held that where the acquittal is based on the compounding of an offence and the compounding is an invalid one under the law, the acquittal would be liable to be set aside by the High Court in exercise of its revisional powers. It was held that as the acquittal of the appellant by the trial Court in that case was based upon compounding of offence which was not compoundable, the High Court was right in setting aside the acquittal of the appellant.
Under the above circumstances, we are unable to accept any of the contentions raised by the learned Counsel for the accused persons.
21. In view of the above circumstances, we allow this acquittal appeal against the respondent No. 1- Shakraji Chaturji, No. 5 - Shanaji Madhaji, No. 6 - Becharji Mohanji, No. 14 - Matambhai Bhikhabhai, No. 15 - Karsanbhai Bhikhabhai, No. 16 - Bharabhai Sagarambhai, No. 17 -Bhopabhai Punjabhai, No. 21 - Bhikhabhai Bhavanbhai and No. 22 - Kamabhai Sagarambhai and all these accused persons are hereby convicted for the offences under Sections 147, 148, 307, 323, 324, 325 and 337 all read with Section 149 of the Indian Penal Code. Appeal stands abated against the respondent No. 3, Manaji Chaturji, who is stated to have died during the pendency of this appeal. These convicts will now be heard on the question of sentence.
22. The learned Counsel for the convicts submits that he will argue the matter on the question of sentence on behalf of all these convicts on 8-10-1996. The matter is, therefore, adjourned for this purpose to 8-10-1996. Heard the learned Counsel for all the convicts on the question of sentence. He has placed affidavits of convict Bhikhabhai Bhavanbhai (respondent No. 21) and convict Shakraji Chaturji (respondent No. 1) on record alongwith the school leave certificates of convict Karsanbhai Bhikhabhai (respondent No. 15) and convict Matambhai Bhikhabhai (respondent No. 14). The death certificate of original accused No. 3, Manaji Chaturji, is also placed on record to show that he had passed away on 2-5-1996. Affidavit of Bhagwanbhai Nathabhai, Jakshibhai Valjibhai, complainant Gandaji Mohanji and Ranaji Jenaji are also placed on record to show that the parties have settled their disputes and are living peacefully. It was submitted that the convict No. 1 Shakraji Chaturji is a heart patient and a file showing that he is being treated by Dr. Pranav Nanavati, M.D. for his heart ailment is shown. It was submitted by learned Counsel for the convicts that the incident had taken place about 13 years back and though gravity of the offence may not be reduced by lapse of time that was a ground which should have bearing on the question of sentence. It was also submitted that the fact that the parties have compromised and there are no disputes, can always be considered for reduction of sentence. It was submitted that while convict accused No. 1, Shakraji Chaturji, was a heart patient, convicts accused Nos. 14 and 15 were only young lads at the time when the incident occurred. Convict accused No. 14 was hardly 21 years of age and convict accused No. 15 was 19 years at that time. It is further pointed out that accused New (sic.) is about 60 years old and should be leniently dealt with. It is also submitted that at no point of time after the incident, i.e., after 10-9-1983, any of these convicts have been involved in any offence. It is further submitted that accused No. 5, Shanaji Madhaji is seriously sick and he has been discharged from the hospital only 10 days back. It is stated that he is suffering from liver problem. It is stated that accused No. 5 has four minor children to be maintained while accused No. 6 has five minor children to maintain and, therefore, they pray for mercy.
23. Reliance was placed by learned Counsel for the convicts upon the decision of the Division Bench of this Court (Coram: K.G. Shah and D.G. Karia, JJ.) in Criminal Appeal No. 767 of 1991 rendered on 8-9-1992 in the case of Jardullakhan Hanijkhan Pathan v. State. In that case though one of the accused was convicted for the offence under Section 307 of I.P.C. he was sentenced to the period of imprisonment already undergone by him (being the period of actual custody of about 6 to 7 months) and an enhaced fine was imposed upon him of Rs. 42,000/- out of which victim compensation of Rs. 40,000/- was paid to the seriously injured person. The Counsel for the accused in that case had stated before the Court that the accused was ready to deposit the fine of Rs. 42,000/- in the Court. Reliance was also placed on the decision of the Division Bench of this Court (Coram: B.C. Patel and Y.B. Bhatt, JJ.) rendered on 23-2-1995 in Criminal Appeal No. 1444 of 1984 in the case of State of Gujarat v. Thakor Somaji Ranaji, in which the accused was convicted for the offence under Section 307 of the I.P.C. and was sentenced to undergo imprisonment already undergone (which is said to be two months) and pay fine of Rs. 50,000/- out of which Rs. 45,000/- were ordered to be distributed among the widow and children of the injured. Reliance was also placed on the decision of the Supreme Court in the case of Mulkiat Singh v. State of Punjab 1983 SCC (Cri.) 52, in which sentence of imprisonment was reduced to the sentence already undergone. The facts of the case are not mentioned nor there is any mention about the offence which was committed by the accused. The sentence of the co-accused was reduced to the sentence already undergone as was done in respect of other accused also by the High Court. The learned Counsel has also relied upon the decision of the Supreme Court in the case of Hari Kishan and State of Haryana v. Sukhbir Singh . It was held in that case that there was no previous enmity between the parties and there was no intention to commit murder and the accused was convicted under Sections 323 and 325 read with Section 149 and 148 while acquitting him of the offence under Section 307 read with Section 149 of the I.P.C. It was held that the accused was entitled to the benefit of probation in that case and the victim should be compensated from the fine which was imposed to the tune of Rs. 50,000/ - and ordered to be paid to Yoginder, who had suffered the head injury.
24. We have given our anxious consideration to the contentions of the Counsel on behalf of these convict persons. The present case is a case of concerted attack after pre-planning, with lethal weapons by several members of the unlawful assembly and the offences which are established are in view of their being the members of the unlawful assembly, offences against public tranquillity. In the assault, six persons were injured of whom three were seriously injured as found by us. These convicts have remained on bail all throughout and it appears that only the respondents 21 and 22, Bhikhabhai Bhavanbhai and Kamabhai Sagrambhai respectively had remained in custody only for a period of two days. Considering the manner in which the offences are committed and the nature of injuries which were caused, these offences would merit severe punishment. However, having regard to various circumstances which are pointed out by the learned Counsel for these convicts including the fact that the parties are now peacefully living and that the learned Counsel for the convicts has shown their readiness of the convicts to pay compensation in all to the tune of Rs. 50,000/- to the injured persons, as may be ordered by this Court, from the fine that may be imposed, we are inclined to take a lenient view of the matter and we make the following order:
ORDER
1. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of six months and pay fine of Rs. 5,000/- each for the offence under Section 307 read with Section 149 of the I.P.C. From the total amount of the fine Rs. 45,000/- we direct that compensation be paid under Section 357 of the Cr. P.C. of Rs. 10,000/- each to seriously injured persons Jakshibhai Valjibhai Rabari, Bhagwanbhai Nathabhai Rabari, Raghunathbhai Khodabhai Rabari and driver Vithalbhai Chhotubhai Vasava and Rs. 5,000/- to the complainant Gandaji Mohanji Thakor. In default of payment of fine, each of the defaulting convict shall undergo rigorous imprisonment for further period of two months.
2. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of six months for the offence under Section 324 read with Section 149 of I.P.C.
3. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of six months for the offence under Section 325 of I.P.C. read with Section 149 of I.P.C.
4. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of six months for the offence under Section 148 of the I.P.C.
5. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of 3 months for the offence under Section 323 of I.P.C. read with Section 149 of I.P.C.
6. Each of the convicted accused persons is sentenced to suffer rigorous imprisonment for a period of three months for the offence under Section 337 of I.P.C. read with Section 149 of I.P.C.
All the above substantive sentences of rigorous imprisonment shall run concurrently. All these convicted persons shall be taken into custody forthwith.