Gujarat High Court
Raqbari vs The on 9 January, 2012
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/1232/2006 18/ 18 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1232 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=====================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ? No. 2 To be referred to the Reporter or not ? No. 3 Whether their Lordships wish to see the fair copy of the judgment ? No. 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No. 5 Whether it is to be circulated to the civil judge ? No. ===================================================== RAQBARI HARGOVAN KARAMSHIBHAI & 6 - Appellant(s) Versus THE STATE OF GUJARAT - Opponent(s) ===================================================== Appearance :
Mr. Haresh N. Joshi, for M/S THAKKAR ASSOC. for Appellant(s).
Mr. H.H. Parikh, for respondent-State. ===================================================== CORAM :
HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/05/2010 C.A.V. JUDGMENT :
(Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The appellants convicts have filed this appeal under Section 374 of the Code of Criminal Procedure, 1973 challenging the judgment and order of conviction and sentence rendered on 6-7-2006 by learned Additional Sessions Judge, Fast Track Court No.2, Patan in Sessions Case No. 183 of 2002 (Old Sessions Case No.106 of 1998) and Sessions Case 346 of 2002 (old Sessions Case No. 31 of 2000) convicting and sentencing them for the offences punishable u/ss 323 and 325 of the I.P. Code and sentencing them to undergo various sentences.
2. According to the prosecution case, on 20-10-1996 at at about 20-45 hours when complainant Amaratbhai Jesingbhai and other persons came on the road going to Ganget village to go to Chamunda Temple with mataji's palli (a religious procession with deity), the accused forming unlawful assembly armed with deadly weapons like dhariya and sticks with common intention to cause grievous hurt made assault on them and caused serious injuries.
3. It was further prosecution case that accused Hargovanbhai Karamshibhai (A-2) and accused Vasu @ Dinesh Karamshibhai (A-1) (of Sessions Case No. 346 of 2002) and accused Dharamshibhai Taljabhai (A-3) caused injuries with 'dhariya' on the head of injured Maganbhai and accused Maganbhai Lilabhai (A-5) with 'dhariya' caused injuries on the head of injured Nagjibhai.
4. It was further prosecution case that accused Karamshibhai Taljabhai (A-1) with stick caused injuries to injured Amarshibhai Jesingbhai on his back and left hand, accused Pravinbhai Dharamshibhai (A-4) with stick caused injuries to injured Maganbhai on his back and accused Kanjibhai Maganbhai (A-6) and accused Kanjibhai Sendhabhai (A-7) with stick caused injuries on back of witness Nagjibhai.
5. It was further prosecution case that accused uttered obscene words in public place and by possessing deadly weapons like 'dhariya' and sticks committed breach of the notification of prohibition of arms issued by the District Magistrate, Mehsana in respect of prohibition of arms.
6. On the basis of First Information Report lodged by Amaratbhai Jesingbhai an offence as I-CR No.142 of 1996 was registered with Chanasma Police Station for the offences punishable u/ss 149, 324, 323, 294-B, 506(2) of the I.P. Code and u/s 135 of the Bombay Police Act, and investigation was started. At the end of investigation, charge sheet came to be filed against the accused except accused Vasu @ Dinesh Karamshibhai for the aforesaid offences.
7. The case was committed to the Sessions Court, Mehsana and it was registered as Sessions Case No.106 of 1998. Thereafter, accused Vasu @ Dinesh Karamshibhai was arrested in connection with the same offence and therefore supplementary charge sheet was filed and case was committed to Sessions Court, Mehsana and it was registered as Sessions Case No. 31 of 2002. On account of establishment of Sessions Court, at Patan both the cases were transferred to Sessions Court, Patan and were numbered Sessions Case No. 183 2002 and 346 of 2002 respectively.
8. Learned Addl. Sessions Judge, Second Fast Track Court, Patan framed charge against the accused for the aforesaid offences. The charge was read over and explained to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 stated that they took out Mataji's palli and when they reached on the road going to Ganget village, the other side made assault and on account of assault Karshanbhai and Mohanbhai Lilabhai fell down and the villagers came there and realised that injured have died and therefore they beat the persons from other side.
9. After hearing the learned A.P.P. and learned advocate for the accused the learned trial Judge acquitted the accused for the offence punishable u/ss 147, 147, 149, 324 and 294-B of the I.P. Code and u/s 135 of the Bombay Police Act but convicted Hargovanbhai Karamshibhai (A-2), accused Dharamshibhai Taljabhai (A-3), accused Maganbhai Lilabhai (A-5) and accused Vasu @ Dinesh Karamshibhai (of Sessions Case No.346 of 2002) for the offence punishable u/s 325 of the I.P. Code and sentenced them to undergo simple imprisonment of six months and to pay fine of Rs.2000/- each and in default thereof to undergo simple imprisonment for one month. The trial court also convicted accused Pravinbhai Dharamshibhai (A-4), accused Kanjibhai Maganbhai (A-6) and Kanjibhai Sendhabhai (A-7) for the offence punishable u/s 323 of the I.P. Code and sentenced them to undergo imprisonment till rising of the court and to pay fine of Rs.700/- and in default thereof to undergo simple imprisonment for one month. Being aggrieved by the said decision, the appellants have preferred this appeal.
10. It is not in dispute that accused Amaratbhai Mohanbhai (A-9) also filed First Information Report for the same offence and it was registered as I CR No. 140 of 1996 by Chanasma Police Station for the offences punishable u/s 302, 307, 147, 148, 149, 324, 325 and 506(2) of the I.P. Code and under Section 135 of the Bombay Police Act. After investigation, charge sheet was filed and case was committed to Sessions Court and was registered as Sessions Case No. 100 of 2002.
11. As all the Sessions cases arise out of the same incident the trial court heard and decided the same together. The accused convicted in the said case preferred Criminal Appeal No. 1303 of 2006 and Criminal Appeal No.1450 of 2006. State also preferred Criminal Appeal No. 2184 of 2006 against the order of acquittal passed in the said case. Therefore, all the appeals are heard and decided simultaneously.
12. We have heard learned advocate Mr. Haresh L. Joshi for M/s. Thakkar Associates for appellants and learned A.P.P. Mr. H.H. Parikh for the respondent State at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial court.
13. Learned advocate Mr. Haresh N. Joshi appearing for M/s. Thakkar Associates for the appellants has submitted that the complainant with others had attacked the accused with deadly weapons, and therefore, the accused filed first information report first in point of time and in the cross-case the accused are convicted. He has also submitted that the learned trial Judge has convicted the accused without sufficient evidence as nexus was not established between the offence and the accused. It is also submitted that the complainant and others made first assault on the accused but to raise a defence first information report was lodged against the accused. It is also submitted that the learned trial Judge has committed serious error in appreciation of evidence with regard to injuries sustained by the witnesses and there is no medical evidence in respect of injuries. He has also submitted that the prosecution did not examine independent witnesses and there is no justification for the same. Therefore, the judgment and order of conviction is required to be set aside. It is also submitted that if the court comes to conclusion that the accused are involved in the offence, this being their first offence, the accused may be granted benefit under the provisions of the Probation of Offenders Act.
14. Learned A.P.P. Mr. H.H. Parikh has submitted that it is not in dispute that two cases arise out of the same incident and therefore the presence of the accused is established . He has also submitted that the oral version of the witnesses is supported by medical evidence. He has also submitted that it was a clash between two groups and hence the persons who were injured in the incident were the only witnesses. Therefore, it cannot be said that only interested witnesses were examined. Hence, the learned trail Judge was justified in recording conviction and no interference is warranted in the impugned judgment and the appeal is required to be dismissed.
15. The prosecution examined complainant and injured P.W. 2 Amaratbhai Jesingbhai Rabari at Exh. 68. According to the witness, when they took out mataji's palli and started to go to Chamunda temple, accused Karamshibhai Taljabhai (A-1) gave stick blows on his back and accused Hargovanbhai (A-2) hit 'dhariya' on his head and on account of injury he was taken to Patan hospital and thereafter to civil hospital, Ahmedabad for treatment. The witness has also stated that he lodged the first information report Exh. 69. The evidence of this witness indicates that 'rabaris' had assembled at village Ziliya and they took out 'mataji's palli'. There were about 400 to 500 people in the procession of 'palli' and there was quarrel between members of two groups. The evidence of this witness indicates that he sustained injuries in the incident and accused Karamshibhai Taljabhai (A-1) and accused Hargovanbhai Karamshibhai (A-2) were responsible for his injuries. Despite lengthy cross-examination the accused have not been able to elicit that the accused named by the injured were not responsible for the injuries.
16. The first information report Exh. 69 indicates that on 20-10-1996 at about 8-30 p.m. 'rabaris' and 'thakor' of the village started to go to 'chamunda' temple with 'mataji's palli' and when they reached on the road going to Ganget village assault was made. It also indicates that accused Hargovanbhai Karamshibhai (A-2) inflicted 'dhariya' blows on head of the complainant and accused Karamshibhai Taljahai (A-1) hit him with stick. .
17. The evidence of another injured P.W. 3 Nagjibhai Dalabhai Rabari at Exh. 17 indicates that when procession reached on the road going to Ganget village the accused picked up quarrel and made assault. It further indicates that accused Maganbhai Lilabhai (A-5) gave 'dhariya' blow on his head and accused Kanjibhai Maganbhai (A-6) and accused Kanjibhai Sendhabhai (A-7) gave stick blows on his back. It further indicates that after the incident, on account of injuries he was taken to Patan Civil Hospital and from there to Ahmedabad for treatment. In the cross-examination, the witness has admitted that there was free fight.
18. The evidence of injured P.W. 4 Maganbhai Arjanbhai Exh. 75 also indicates that there was heated exchange of words between the complainant and the accused when 'palli' procession reached at Zileswhar Hotel but as he intervened the procession proceeded further. It also indicates that when the procession reached on the road going to Ganget village, the accused again picked up quarrel and accused Dharamshibhai Taljabhai (A-3), accused Vasu @ Dinesh Karamshibhai (of Sessions Case No. 346 of 2002) inflicted 'dhariya' blows on his head and accused Pravinbhai Karamshibhai (A-4) hit stick on his back. It also indicates that he was treated at Civil Hospital, Patan and then shifted to Civil Hospital, Ahmedabad.
19. The prosecution has examined the doctor who initially treated the injured at Patan Hospital P.W. 9 Dr. Ramanbhai Baldevbhai Patel at Exh. 31. The witness was a Medical Officer at General Hospital, Patan. According to the Doctor, injuries Nos. 1, 4 and 5 caused to Amaratbhai were possible by 'dhariya' and injuries Nos. 2 and 3 were possible by stick. The witness has also stated that injury caused to injured Maganbhai Arjanbhai and injury No.1 caused to injured Nagjibhai Dalabhai were possible by blunt portion of 'dhariya' and injuries Nos.2 and 3 caused to Nagjibhai were possible by stick. The witness has also deposed that the injured were referred to Civil Hospital, Ahmedabad. The witness in the cross-examination has stated that injury no.1 sustained by injured Amaratbhai, Maganbhai and Nagjibhai was serious in nature. The witness has also issued medical certificate Exh. 92.
20. On perusal of medical certificate Exh. 92, it appears that the injured were brought to the hospital by their relatives with history of assault by 'lathi' and 'dhariya'. It also indicates that the injured were unconscious and history of injuries was given by their relatives.
21. The prosecution has examined the doctor at Civil Hospital, Ahmedabad P.W. 12 Dr. Digant Kalidas Dixit at Exh. 98. According to the witness, injured Maganbhai Arjanbhai had two injuries on his head and two injuries on his chest. According to him, the injured was treated as an indoor patient from 21-20-1996 to 22-10-1996 and he issued certificate Exh. 100. The witness has also stated that injuries Nos. 1 and 2 were possible by blunt portion of 'dhariya' and injuries Nos. 3 and 4 were possible by stick.
22. The Doctor also treated injured Amaratbhai Jesingbhai as indoor patient from 21-10-1996 to 23-10-1996.The witness has described the injuries in his deposition. The witness has stated that injuries No.1 to 3 were possible by blunt portion of 'dhariya' and injuries Nos. 4 to 6 were possible by stick.
23. The Doctor has also treated injured Nagjibhai Dalabhai. According to him, the injured had one injury on his head and two injuries on his chest and he was treated as indoor patient from 21-10-1996 to 22-10-1996. The witness has also opined that injury No.1 was possible by blunt portion of 'dhariya' and injuries No.2 and 3 were possible by stick. It is pertinent that the doctor has not been cross-examined with regard to the nature of injuries sustained by the injured and nature of the weapon used in inflicting the injuries. Therefore, virtually expert's evidence with regard to injuries and use of weapon in causing the injuries has gone unchallenged.
24. The Doctor has issued injury certificate Exh.100 for injured Maganbhai Arjanbhai, injury certificate Exh.102 for Amaratbhai Jesingbhai and injury certificate Exh.105 for Nagjibhai Dalabhai. Injury certificate Exh.100 indicates that Maganbhai had two injuries on head and two injuries on chest. Injury Certificate Exh.102 indicates that injured Amaratbhai had three injuries on head, one injury on chest and two injuries on hand. Injury certificate Exh. 105 indicates that Nagjibhai had one injury on head and two injuries on chest.
25. In view of this evidence, it clear emerges that the witnesses sustained injuries in the incident and were treated at the hospital. The medical evidence corroborates oral version of the injured witnesses. It also indicates that the injuries found on the injured witnesses, were possible by 'dhariya' and stick. As observed earlier, the injured witnesses have attributed their injuries to the accused named by them. It emerges that there was free fight between two groups and members of both the groups sustained injuries in the incident and so involvement and participation of the accused in the incident are established. Hence, the chain of circumstances connecting the accused with the offence has been successfully established . Therefore, the learned trial Judge was justified in convicting the accused and no interference is warranted in the impugned judgment.
26. Learned advocate Mr. Joshi has in alternative submitted that this being first offence, the accused may be given benefit under the provisions of the Probation of Offenders Act, 1958.
27. Section 4 of the Probation of Offenders Act, 1958 (in short the Act )gives power to the Court to release certain offenders on probation of good conduct. It provides that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behavour. Sub-section (2) of Section 4 of the Act, provides that the court shall take into consideration the report, if any, of the probation officer in relation to the case.
28. It is stated that accused Pravinbhai Dharmashibhai (A-4), accused Kanjibhai Maganbhai (A-6) and accused Kanjibhai Sendhabhai (A-7) have undergone the sentence. Hence, this court by the order dated 18-2-2010 directed the learned District Probation Officer, Patan District, to send his report in respect of Rabari Hargovanbhai Karamshibhai (A-2), Rabari Dharamshibhai Taljabhai (A-3), Rabari Maganbhai Lilabhai (A-5) and Rabari Vasu @ Dinesh Karamshibhai accused (of Sessions Case No.346 of 2002). In compliance of the order, the Probation Officer, Mehsana submitted his report dated 11-3-2010 in respect of the appellants accused whose reports were called for.
29. As observed earlier, in our view, the learned trial Judge was justified in relying upon the evidence connecting the accused with the offence and convicting them. This court also does not find any infirmity in the impugned judgment, and therefore, has confirmed the judgment and order of conviction and sentence passed by the learned trial Judge. The evidence indicates that the unfortunate incident occurred at the time of taking out procession of 'mataji's palli' and the incident ensued all of a sudden. The trial court also found that the accused were not members of an unlawful assembly and the incident did not ensue in furtherance of common object of the unlawful assembly. On perusal of the report of the learned Probation Officer, we are satisfied that the appellant accused have fixed place of abode and regular occupation in the jurisdiction of this Court. Therefore, appellants accused; Rabari Hargovanbhai Karamshibhai (A-2), Rabari Dharamshibhai Taljabhai (A-3), Rabari Maganbhai Lilabhai (A-5) and Rabari Vasu @ Dinesh Karamshibhai (of Sessions Case No.346 of 2002) are required to be released on probation of good conduct as provided under Section 4(1) of the Probation of Offenders Act, 1958.
30. Having considered the report of the learned Probation Officer and circumstances of the case including the nature of the offence and the character of the offenders as reported by the learned Probation Officer, in our view, it is expedient to release the aforesaid four appellants accused on probation of good conduct for a period of one year on their entering into a bond with one surety each to receive sentence when called upon during such period and shall in the meantime, keep peace and be of good behaviour.
31. In view of above, this appeal fails and stands dismissed and the judgment and order of conviction and sentence rendered on 6-7-2006 by learned Additional Sessions Judge, Fast Track Court No.2, Patan in Sessions Case No. 183 of 2002 (Old Sessions Case No.106 of 1998) and Sessions Case 346 of 2002 (old Sessions Case No. 31 of 2000) is confirmed.
32. However, appellants accused; Rabari Hargovanbhai Karamshibhai (A-2), Rabari Dharamshibhai Taljabhai (A-3), Rabari Maganbhai Lilabhai (A-5) and Rabari Vasu @ Dinesh Karamshibhai (of Sessions Case No.346 of 2002) shall be released on probation of good conduct as provided under Section 4(1) of the Probation of Offenders Act, 1958 on their entering into bond in the sum of Rs.10,000/- (Rupees Ten thousand only) for a period of one year with one surety each, to appear and receive sentence when called upon during such period and in the meantime to keep peace and be of good behaviour.
(A.L. Dave, J.) (Bankim N. Mehta, J.) /JVSatwara/ Top