Gujarat High Court
Chandrakant Umaanji Marwadi vs State Of Gujarat on 6 July, 2018
Author: B.N. Karia
Bench: B.N. Karia
R/CR.A/1148/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL No. 1148 of 1999
With
R/CRIMINAL APPEAL No. 1306 of 1999
FOR APPROVAL AND SIGNATURE :
HONOURABLE Mr. JUSTICE B.N. KARIA
==============================================================
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 ?
==============================================================
UMAANJI RAJAJI MARWADI
Versus
STATE OF GUJARAT
==============================================================
Appearance :
Mr RAMNANDAN SINGH, Advocate for the PETITIONER(s) No.
1,10,11,12,2,3,4,5,6,7,8,9
Ms JAYSHREE C BHATT, Advocate for the PETITIONER(s) No. 1,2
Mr RUTVIJ OZA, APP for the RESPONDENT(s) No. 1
=============================================================
CORAM:Â HONOURABLE MR.JUSTICE B.N. KARIA
th
6 July 2018
CAV JUDGMENT
These appeals are filed by the accused persons against the common judgment and order dated 22nd September 1999 passed by the learned Additional City Sessions Judge, Court no.2 Ahmedabad Page 1 of 17 R/CR.A/1148/1999 CAV JUDGMENT in Sessions case no. 303 of 1996, whereby the learned trial Judge found all the accused persons guilty for commission of an offence punishable under Section 143 of the IPC and sentenced each one of them to undergo simple imprisonment for a term of 2 months and pay fine of Rs.100/-; and in default thereof, to undergo 7 days simple imprisonment. And also found all the accused persons guilty for commission of an offence punishable under Section 147 of the IPC and sentenced each one of them to undergo simple imprisonment for a term of 1 year and pay fine of Rs. 200/-; and in default thereof, to undergo 7 days simple imprisonment; and also found all the accused persons guilty for commission of an offence punishable under Section 148 of the IPC and sentenced them to undergo simple imprisonment for a term of 1 year and pay fine of Rs. 200/-; and in default thereof, to undergo 7 days simple imprisonment and found all the accused persons guilty for commission of an offence punishable under Section 307 read with Section 149 of the IPC and sentenced them to undergo rigorous imprisonment for a term of 5 years and pay fine of Rs. 200/-; and in default thereof, to undergo 1 month simple imprisonment.
In order to appreciate the issue involved in these appeals, few facts need to be mentioned herein below.
Page 2 of 17 R/CR.A/1148/1999 CAV JUDGMENT
The appellants of Criminal Appeal no. 1148 of 1999 are the original accused nos. 1, 3, 4, 5, 6, 8 to 12 in Sessions Case no. 303 of 1996, and whereas, the appellants of Criminal Appeal no. 1306 of 1999 are the original accused no. 2 and 7 in Sessions Case No. 303 of 1996. All these accused have been prosecuted to stand trial for commission of an offence punishable under Sections 143, 147, 148, 149, 188, 307, 324, 452 of the IPC read with Section 135 (1) of the Bombay Police Act.
In short, the prosecution case against the appellants-accused was that on 29th September, 1995 at about 10:45 PM in Sardarnagar area of Ahmedabad city, all the accused designated in an unlawful assembly with a common object of causing grievous injuries, or to commit murder by using deadly weapons such as Dhariya, Sword, iron pipes, wooden sticks, assaulted the complainant and witnesses and thereby committed the offence: as noted herein above. The injuries sustained were contusion wound, swelling fracture of limbs, breaking of teeth, stab, cut wound, head injury, fracture of tibia and fibula tissues, etc. It was the case of prosecution that on 29-09-1995, complainant-Vishnu Aslaji Marwadi gave his complaint before the then PI of Sardarnagar Police Station-Shri Vishwambhardayal Bhadraprasad Sharma that he along with his family have been Page 3 of 17 R/CR.A/1148/1999 CAV JUDGMENT residing in the huts of Nehrunagar, Kubernagar. On the day of occurrence, at about 06:00 hrs in the evening, his brother- Premjibhai went to offer coconut to the goddess- Khodiyar in the temple, located at Nehrunagar. As the temple was closed and as the key of the temple was in possession of Umaji Rajaji Marwadi- residing at Nehrunagar, his brother asked Umaji to give keys of temple. But, Umaji did not give the key of temple and started using abusive language. At that time, as complainant's brother asked him not to use abusive language, Umaji indulged into quarrel with him. Thereafter, they dispersed and at about 07:45 hrs in the evening, when complainant, his brothers and other family members were sitting near their house at Nehrunagar, Tulsi Umaji - armed with dhariya; Viru Unaji - armed with pipe; Chandrakant Umaji - armed with sword; Kishan Umaji - armed with pipe; son-in-law of Umaji Rambhai and his two sons-Ravjibhai and Bhagwanbhai, Arjanbhai Tulsibhai; Ganesh Machrabhau; Ratan Machrabhai; Mohan Umaji; Babu Machrabhai and Umaji - all armed with sticks came together by forming unlawful assembly and assaulted the complainant and other persons to take revenge of the quarrel which took place with the complainant's brother. Tulsi Umaji inflicted blow by the blunt part of dhariya on the complainant's head and over his right hand; Viru Umaji gave pipe blow on the Page 4 of 17 R/CR.A/1148/1999 CAV JUDGMENT complainant's face. The complainant's tooth got damaged and fell down and he sustained injuries on his head. Whereas, other injuries were caused to the complainant on his thigh and leg by stick blows. Chandrakant Umaji gave sword blow to the complainant's brothers-Lalu Aslaji and Keshaji Aslaji on their heads. Injuries were caused also to the complainant's other brother named Chunilal; his mother-Hiraben; sister-Gauri and nephew- Dhaniben by stick blows, pipe blows, blows of kick and fists. After registering the complaint (Exh.21) and while considering fatal injuries caused to the injured witnesses, IO-Shri Sharma instructed ASI Shri Rathod to arrange for DD. Executive Magistrate came and recorded DDs of seriously injured persons-Vishnu Aslaji and Lalu Aslaji, out of all injured witnesses. Required treatment- yaadi was sent to the Hospital. Statements of injured persons were recorded and were included in case papers. Senior officers were informed about the incident and report was sent. Next day, in the morning, panchnama of the place of occurrence was drawn in presence of the panchas which is produced vide Exh. 40. Required muddamal was seized from the place of occurrence. As blood stained clothes of injured-Premabhai Aslaji were produced, his clothes were seized and inquest panchnama was drawn [which is produced vide Exh. 41. As clothes of injured- Chunilal Aslaji were Page 5 of 17 R/CR.A/1148/1999 CAV JUDGMENT produced, his clothes were seized by drawing a detailed panchnama at Exh. 62. Statement of persons residing near the place of occurrence were recorded. Clothes of injured persons- Hiraben Aslaji and Gauri Babulal were seized by drawing a detailed panchnama [which is produced vide Exh. 46]. As clothes of injured persons viz., complainant Vishnuji Aslaji; Lalaji Aslaji and Keshaji Aslaji were produced [which they were wearing on the day of occurrence], their clothes were seized in presence of panchas by drawing detailed panchnama at Exh-63. As accused persons- Umaji Ramaji; Chandrakant Umaji and Babu Macharji appeared before police station, their statements were recorded and inquest panchnama at Exh.64 was drawn in presence of panchas. As accused-Chandrakant Umaji expressed willingness to produce sword in presence of the panchas, he led police to his house and produced the sword which was hiddent between the woods and it was seized in presence of the panchas, by affixing panch slips which is a detailed panchnama produced vide Exh.65 and whereas, panch slip is produced vide Exh-66.
On 04/10/1995, the accused persons namely, Umaji Rajaji and Babuji Machhraji expressed their willingness to show something. Hence, the panchas were called in that regard and thereafter, as shown by the accused persons, they reached at an Page 6 of 17 R/CR.A/1148/1999 CAV JUDGMENT open ground, situated behind the huts of Nehrunagar. The accused persons took out muddamal stick from thorny bushes situated thereon the ground, which was seized in presence of panchas at Exh-35. And whereas, on 16/10/1995, the accused persons Arjan Tulsi; Ratan Machhraji and Ramabhai Mulabhai produced sticks in the police station. The same were seized in the presence of panchas, as per the details of panchnama at Exh-42. Likewise, on the aforesaid day, accused persons namely, Tulsi Umaji; Kishan Umaji; Mohan Umaji; Ganesh Machhraji and Virabhai Umaji expressed their willingness to show something in connection with the said offence. Hence, two panchas were called in that regard and as per the accused persons, they went to an open ground situated behind the huts of Nehrunagar and from there, accused Tulsi Umaji took out Dhariya; Kishan Umaji and Virabhai Umaji took out pipes; Mohan Umaji and Ganesh Machhraji took out wooden strip from the bushes, situated behind the wall of unused old construction, near Aadarsh High School. All these weapons were seized as per the details of panchnama at Exh-67. The I.O identified all the weapons and signature of panch-slip affixed thereon.
Thereafter, on 03/02/1996, charge-sheet against all the accused persons came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad for an offence punishable Page 7 of 17 R/CR.A/1148/1999 CAV JUDGMENT under Sections 143, 147, 148, 149, 188, 307, 324, 323, 452 of IPC and also under section-135(1) of Bombay Police Act. The witness identified the panch-slips and the clothes of persons injured during the said incident which were seized during the course of different panchnamas. As the learned Metropolitan Magistrate had no jurisdiction to conduct the trial of offence, he committed the case to the Sessions Court vide a committal order dated 09/07/1996. On 01/07/1997, all the accused persons did not plead guilty through their statement vide Exhs. 6 to 17 and requested to be tried in accordance with law.
Heard learned advocate Shri Ramndandan Singh for the appellants that in both the appeals and Shri Rutvij Oza, learned APP for the respondent state. It is submitted by learned advocate Shri Ramnandan Singh appearing for the appellants that the impugned judgment order passed by learned Additional City Sessions Judge, Court no.2 Ahmedabad is very harsh; against evidence on record and against the basic principles of criminal jurisprudence. That, it is based on conjunctures and surmises as well as presumption which is not permitted by law. That, the evidence was not properly appreciated by the learned trial Judge as there are material contradictions in the deposition before the court and the statements recorded before the police. That, witnesses Page 8 of 17 R/CR.A/1148/1999 CAV JUDGMENT have completely changed their version and have made substantial improvement by advancing the victims case in their oral deposition before the trial court that, they are unreliable and cannot be believed by the court. That, all the alleged eye-witnesses are interested witnesses and they have made a false case against the accused persons. That, therefore, the injuries caused to the witnesses were not sufficient to cause death of any of the witness, or even for that matter the complainant and therefore, provision of Section 307 of IPC was not applicable to the facts of the present case. Nevertheless, the learned trial Judge committed a grave error in convicting the accused-all the appellants herein for an offence described herein above.
Inviting attention of this court to the deposition of Dr. Rameshchandra Bhagubhai Shah (PW-15 : Exh. 47), it was argued that it is nowhere stated by this doctor that injuries caused to the witnesses were sufficient to cause that. As there was complete absence of intention or knowledge on the part of accused to commit such a serious offence or to cause death knowingly or with an intention. This material aspect has been ignored by the learned trial judge to arrive at a conclusion in the matter of awarding sentence qua each of the accused persons for an offence punishable under Section 307 of IPC. That, cause of death as per the Page 9 of 17 R/CR.A/1148/1999 CAV JUDGMENT prosecution case was the keys of Khodiyar temple which was demanded from the accused Umaji Najaji Marwadi by one Premji Vaghela, as the temple was closed when the keys were refused to be handed over to the said Premjibhai Vaghela the said accused started abusive language. Brother of the complainant requested him not to use abusive language and therefore, quarrel suddenly started. Thereafter, all of them were dispersed and when the complainant and his brother as well as the family members were sitting near by their residence at about 7.45 PM, keeping grudge in mind in relation to the previous dispute with their brother of the complainant, all the accused persons armed with deadly weapons like sword, dhariya, iron pipes, wooden sticks formed an unlawful assembly and assaulted them. That, in fact, previous dispute with the brother of the complainant was before 13 years from the date of the offence as keeping in mind grudge of this alleged incident no accused persons would have with an intention or knowledge caused such injuries. The trial court has committed grave error in sentencing all the accused persons for the offence punishable under Sections 143, 147, 148, 149, 188, 307, 324, 452 of the IPC read with Section 135 (1) of the BP Act.
Learned advocate Shri Ramnandan Singh appearing for the appellants further submitted that he is not requesting for complete Page 10 of 17 R/CR.A/1148/1999 CAV JUDGMENT acquittal of the convicts, but so far as their conviction passed by the learned additional sessions judge under Section 307 of IPC is concerned, the same needs to be reduced: as deemed fit by the court. It was ultimately requested by him to proportionately reduce the sentence awarded under Section 307 of IPC by the learned Additional Sessions Judge, Ahmedabad vide order impugned.
On the other hand, learned APP Shri Rutvij Oza submitted that the findings and reasoning arrived at by the learned trial judge while convicting the accused persons are just and reasonable and does not call for any interference. He drew attention of this court to the deposition of the complainant Vishnu Aslaji Marwadi, his brother Lallu Aslaji and Kesaji Aslaji as well as that of Dr. Ramesh B Shah to contend that all of them have supported the prosecution case before the trial court in their depositions, duly identifying the weapons used by the accused persons at the time of offence and injuries caused by each of them to the injured persons. They have also identified the accused by their names before the court and also given deposition as to who inflicted which injury. That, the medical evidence also gets due collaboration. The injuries sustained by the injured persons were serious in nature, as deposed by doctor concerned who treated them. In absence of making any statement that such injuries were sufficient to cause death by the medical Page 11 of 17 R/CR.A/1148/1999 CAV JUDGMENT officer who treated the victims would not absolve the accused persons from the offence punishable under section 307 of IPC. That, the injuries shown by doctor in his deposition were sufficient to cause death of a person knowingly caused to the injured. He has also invited attention of this court to section 307 of IPC to argue that, these injuries were caused to the injured knowingly and with an intention to cause death, as proved by the prosecution without reasonable doubt. Entire evidence was considered by the learned trial judge in detail that the accused have used deadly weapons such has dhariya, sword, iron pipes, wooden sticks etc. which were recovered from their possession during the course of preparing panchnama. That, by examining panch witnesses as well as investigating officer, the recovery of weapons as well as place of offence were proved through the deposition of the prosecution witnesses and therefore, there is no scope to reduce the sentence imposed by the learned trial judge, or even for that matter to quash and set aside the judgment and order by taking a different view by this court. Hence, it was requested by learned APP Shri Ritvij Oza to dismiss both these appeals since there is no error in the judgment and order which is called in question in these appeals.
Having considered the facts of the case, the submissions made by learned advocate and on perusal of the record of the case this Page 12 of 17 R/CR.A/1148/1999 CAV JUDGMENT court is inclined to allow the present appeals in part, so far as the accused are concerned by modifying the sentence awarded under section 307 of IPC and there by reducing it to three years by enhancing the fine amount awarded by the sessions court from a meager sum of Rs. 200/- to Rs. 25,000/- payable by each of the appellants. This I am inclined to do for the following reasons:
(a) Firstly, the incident is of the year 1995 and we are in the year 2018. In other words, it is now almost 23 years that this proceeding is pending in various Courts. The alleged incident arose as a result of demand of keys of the temple which was closed on the date of offence from the accused - Umaji Rajaji Marwadi by Premji
- brother of complainant Vishnubhai Aslaji Marwadi. This accused refused to hand over keys and started abusive language. However, brother of the complainant requested him to stop use of abusive language which resulted into a quarrel for a while. Thereafter, all of them dispersed from the place however, thereafter, when the complainant, his brothers and other family members were sitting near by their residence at about 7.45pm, keeping grudge of the previous dispute with brother of the complainant, all the accused persons; as stated above, came with deadly weapons; as described above, and thereby assaulted the complainant and other witnesses.
The injured witnesses have not stated before the police as to who Page 13 of 17 R/CR.A/1148/1999 CAV JUDGMENT were the accused persons by disclosing their names at the first point of time, nor even informed the doctor who treated the injured persons about the assaulters.
[b] PW-2 Lalubhai Aslaji Solanki in his deposition at Exh.25 has admitted that, before 13 years there was some dispute between his father and the accused persons and except this, there was no other dispute between them. It could be difficult to believe the story of the prosecution that any grievance could survive or revenge could be taken by the accused persons of any dispute which happened between the rival parties before 13 years. This incident was, as per the prosecution case, due to refusal to give keys of the temple by Premabhai. There was no other incident stated by the prosecution for prompting this offence by the accused persons. [c] Further, there is material contradiction in the deposition of prosecution witnesses who were examined before the court below from the statements that were made before the IO. All the witnesses examined by the prosecution are related to each other and they are staying in the near by area. It appears from their deposition that they are closely related to each one. There is no dispute in respect of demand of keys of Khodiyar mata temple and quarrel between them. Before this incident, all the accused persons as well as complainant were staying peacefully.
Page 14 of 17 R/CR.A/1148/1999 CAV JUDGMENT [d] On the seized weapons, there was no blood stains found as per the FSL report: since they were seized 10 days after the date of offence. The medical officer who examined the injured persons has not stated before the trial court in his deposition that the injury caused to the injured persons was sufficient to caused death. [e] To attract Section 307 of IPC, the prosecution is obliged to prove that the act was done with an intention or knowledge to cause bodily injury as the accused knew to be likely to cause death or that such bodily injury that such bodily injury which was in the ordinary course of nature would cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death. The prosecution has failed to prove entire ingredients of the offence to bring the case within the purview of section 307 of IPC. Intention or knowledge to caused death must be established. Burden of proving ingredients of the offence is upon the prosecution. Mere fact that, the accused has caused injury by dhariya, sword, iron pipes, wooden sticks etc., would not ipso facto bring the case under Section 307 of IPC.
[f] Another Dr. Sureshbhai Mahendra (PW-16 : Exh.58) who examined the injured Premabhai Marwadi is also silent in his deposition on the aspect of injuries caused to the injured and Page 15 of 17 R/CR.A/1148/1999 CAV JUDGMENT refrained to comment weather these injuries were sufficient enough to cause death of the injured.
[g] There is material contradiction in the complaint Exh.21, as well as deposition of the complainant. Further, no independent witnesses were examined by the prosecution.
[h] Investigating officer had received vardi, but no such vardi was produced on the record by the prosecution.
[i] There is material contradiction in respect of the place of offence. As per panchnama of the place of offence and Exh. 40, the incident took place in the house, while the prosecution witnesses no.1 to 6 have stated in their deposition before the trial court that the incident took place in the public chowk, near by the Temple.
For all these reasons, this Court is inclined to interfere only on the aspect of quantum of sentence awarded by the learned trial Judge and thereby reduces the sentence by converting the offence punishable u/s. 325 of IPC from that of offence punishable under Section 307 of IPC, and accordingly, direct all the appellants accused to undergo rigorous imprisonment for a period of 3 years instead of 5 years; as imposed by the court below under Section 307 of IPC. At the same time, this Court deems it just and proper to enhance the fine amount imposed by the trial Judge from Rs. 200/- to Rs. 25,000/- to be paid by each of the appellants accused. Page 16 of 17 R/CR.A/1148/1999 CAV JUDGMENT
In light of the foregoing discussion, Appeals succeed in part. The impugned judgment and order dated 22nd September 1999 passed by the learned Additional City Sessions Judge, Court no.2 Ahmedabad in Sessions Case No. 303 of 1996 is modified to the extent stipulated above.
Appellants to surrender before the learned Additional City Sessions Judge, Court No.2, Ahmedabad for serving out the sentence. Bail bonds; if any, stand cancelled. Set-off is permissible under Section 428 of the Criminal Procedure Code, 1973 to the appellants, and the order of sentence to run concurrently.
Rule made absolute to the aforestated extent.
[B.N. KARIA, J.]
Learned advocate Shri Ramnandan Singh, after
pronouncement of the judgment, requested this Court to grant four weeks' time to the appellant-accused to surrender. His request was based on mainly socio-economical folds. Considering the request made, appellants are allowed to surrender on or before 21st July 2018.
[B.N Karia, J.] Prakash Page 17 of 17