Gujarat High Court
Vaghajibhai Veljibhai Varsadavala vs State Of Gujarat on 30 April, 2004
Equivalent citations: 2004CRILJ3414
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT C.K. Buch, J.
1 At the request of the learned counsels appearing for both the parties, this Revision Application is finally heard and the same is disposed of by this final order at an admission stage.
2. This Revision Application is preferred by four petitioners-accused persons of Sessions Case No.15/2000, facing trial of the offences punishable under Sections 143, 147, 148, 149, 307, 324 and 337 of the Indian Penal Code; and under Sections 25(1)(a) and 27 of the Arms Act and also under Section 135 of the Bombay Police Act. On the strength of the complaint filed on 13th October, 1996 an offence being C.R. No.I-295/96 came to be registered with Varachcha Road Police Station, Surat, for the offences punishable under Sections 143,147,148,149, 326 and 337 of the Indian Penal Code; and Sections 25(1)(a) and 27 and also under Section 135 of the Bombay Police Act. On 14th October, 1996, the Police Sub-Inspector dealing with the investigation sent a Yadi to the learned Chief Judicial Magistrate, Surat for addition of the offence punishable under Section 307 of the Indian Penal Code and ultimately, all the petitioners-accused came to be chargesheeted for the aforesaid offences including the offence punishable under Section 307 of the Indian Penal Code.
3. When the Court was contemplating to frame charges against the petitioners-accused, the petitioners-accused in exercise of their privilege filed an application below exh.5 under Sections 227 and 228(i)(a) of the Criminal Procedure Code (hereinafter referred to as 'the Code'), requesting the Court to frame the charges under Sections 337, 324 and 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act; and to discharge them from any other serious offence. But the learned Additional Sessions Judge, after hearing the learned Additional Public Prosecutor and the learned counsel defending the present petitioners, allowed the application at exh.5 in part and directed to discharge the petitioners-accused from the charges punishable under Section 326 of the Indian Penal Code and Section 25(1)(a) of the Arms Act. However, the learned Additional Sessions Judge vide his order dated 12th January, 2004 decided to frame the charges for the offences punishable under Sections 143,147,148, 149, 323,324, 337 and 307 of the Indian Penal Code; Section 27 of the Arms Act and also under Section 135 of the Bombay Police Act, which has been brought before this Court by way of this Revision Application.
4. The petitioners have challenged the legality and validity of the order passed by the learned Additional Sessions Judge, stating that there was no reason for the Investigating Officer even to file a chargesheet of the offences punishable under Section 337, 324 and 34 of the Indian Penal Code and also under Section 135 of the Bombay Police Act and the application exh.5 was required to be allowed as no ingredients of the offence are available in the papers of investigation submitted with the chargesheet for any of the offences then mentioned in the application exh.5.
5. The learned counsel appearing for the petitioners-accused has taken me through various grounds agitated in para :3 of the memo of the Revision Application. However, he has mainly concentrated his argument that the accused persons ought not have been asked to face trial of the offence either under Section 307 or under Section 326 of the Indian Penal Code. Quoting Section 307 of the Indian Penal Code, it is contended by the petitioners that the learned Additional Sessions Judge has committed a serious error in not appreciating the aspect that there is no evidence connected so far by the prosecution for the offences punishable under Sections 143,147,148 and 149 of the Indian Penal Code. According to Mr. Ravani, the facts of the case of the prosecution have not been considered in the correct perspective; and even the law laid down by this Court and the Apex Court and the various decisions cited by Mr.Ravani have not been considered. It is also one of the arguments of Mr.Ravani that the learned Additional Sessions Judge has committed a grave error in interpreting wrongly the provisions of Section 39 of the Arms Act. While developing the arguments, Mr.Ravani has placed reliance on the following decisions viz. (i) AIR 1982 SC 62, in the case of Kundan Singh v/s. State of Punjab (ii) AIR 1990 SC 1962, in the case of Niranjan Singh Karam Singh Punjabi v/s Jitendra Bhimraj Bijja, (iii) 1996 Cr.L.J. 2465, in the case of Merambhai Punjabhai Khachar and ors. v/s. State of Gujarat, (iv) 1971 SCC (Cri.) 237 and (v) 2004 (1) GLH 108, in the case of State of Gujarat v/s. Kharwa Hiralal @ Iku Gagan and anr.
5. The learned Additional Public Prosecutor Ms. Nandini Joshi, while resisting the submission made by Mr.Ravani, has tried to point out that the learned Additional Sessions Judge has not committed any error in dealing with the application exh.5, by holding that the accused can be tried for the offences punishable under Section 307 of the Indian Penal Code alongwith other offences punishable under Indian Penal Code mentioned in the operative part and also for the offence punishable under Section 27 of the Arms Act.
6. To appreciate the rival contentions, it is necessary to state facts of the case of the prosecution in brief pointed out to the Court from the application exh.5 of the order under challenge. The papers of the investigation were also brought before the Court by the learned Additional Public Prosecutor for perusal. The orig.complainant and other witnesses, who have sustained injuries in the incident narrated by the complainant, are the occupants, alongwith others, of a parcel of land located in the area and the accused persons with the help of other unknown six to eight persons - allegation is that they were hired for the purpose - assaulted the complainant and the witnesses to part them from the land in question at odd hours in the early morning i.e. at about 5-00 to 5-30 a.m., on 13th October, 1996. All the accused persons had reached to the locality/society riding vehicles such as Tractor, Maruti Car and motorcycles described as Bullet and Hero Honda by the witnesses. The accused persons were pelting stones, shouting and giving threats and all the residents of the said locality/society including complainant and witnesses initially were put under mental stress and they were asked to vacate the area occupied by them. Thereafter, they were assaulted with iron pipes, iron rods, stones, etc. and they were threatened for life. It is the say of some prosecution witnesses that the orig.accused no.1-father of the orig.accused no.2, was holding a firearm and he was showing the firearm to the mob and thereby threatening the occupants of the land to vacate the same. The accused no.2-Dineshbhai, in the process gave a blow with iron pipe on the right front palatal region of victim Jaya. In the same way, witness Lilaben was also inflicted a blow over her forehead and on the right palatal region. The medical evidence collected by the prosecution indicates that other female witnesses namely Pushpaben and the complainant Sushilaben have also sustained injuries. The say of the prosecution that the accused no.1-Vaghjibhai, during the course of this assault had fired three rounds from his firearm. Some prosecution witnesses have said that the rounds were fired in the air but one of the prosecution witnesses namely Ghanshyambhai has said that the fire was towards the mob. It is not placed before the Court by either side as to whether any of the persons sustained injury in the entire incident. Considering the odd hours of the morning and other facts emerging from the record including the motive pleaded by the prosecution, it is argued by Mr.Ravani that the intention of the accused was not of committing murder of any of the prosecution witnesses, including the complainant and if the say of the prosecution is accepted as it is, it can be inferred that the accused persons were there at the spot only to scare the unauthorized occupants of the land in question and the injuries found on the bodies of the persons injured are of simple nature and, therefore, none of the accused could be held responsible for the offence punishable either under Section 326 or 307 of the Indian Penal Code. The firearm was never aimed at any individual and no injury is specifically found on the body of the victims though number of prosecution witnesses have been found injured. Therefore, this Court at least should reverse the finding recorded by the learned Additional Sessions Judge, Surat and discharge the accused persons from the offence punishable under Sections 307 and 326 of the Indian Penal Code and it may be ordered that after framing the appropriate charge, as provided under subsection ( ) of Section ( ) of the Code and the petitioners may be tried before the Court of learned Chief Judicial Magistrate, Surat or any other competent subordinate Court. It is true that in the case of Kundan Singh (Supra), the Apex Court has observed that two prosecution witnesses, who were in the courtyard of the house when the appellant fired gunshots and as these two witnesses had received simple injuries from the gunshots fired by the accused, the conviction of the accused under Section 307 was not justified and it was altered to Section 324 of the Indian Penal Code. According to Mr.Ravani, in the present case, the evidence collected by the prosecution is not clear, on the contrary, conflicting on the point as to whether the pistol was fired in the air or towards the mob or towards any individual and there is evidence of some of the prosecution witnesses that the pistol was fired in the air and hence, Section 307 of the Indian Penal Code could not have been applied. In the case of Merambhai Punjabhai Khachar and ors. (Supra), the Apex Court in para :12 has observed as under :
"Despite these being the injuries, Shri Adhyaru urged that as these had been caused by a fire arm, as deposed by Sanjuben who was examined as PW 7, and as the pellet had struck the head, intention or knowledge to cause death was present. We do not think if we would be justified to read the aforesaid mens rea because though the injury was by a pellet, it only seems to have grazed the head of Sanjuben. We, therefore hold that ingredients of Section 307 are not satisfied qua Sanjuben. Instead, the offence committed would attract Section 324. As the injuries in question had been caused, as per the evidence of PW-7 herself, by appellant no.9 Shivrajbhai (accused no.11), we convict him under Section 324 and award R.I. for one year and a fine of Rs.1,000/- in default, S.I. for one month, as sentence. Appellant Nos.3, 8, 10 and 14 stand acquitted under Section 307/149 for wrong done to Sanjuben."
7. In this cited decision, the group of accused persons having firearms had taken position on a terrace of the first floor and fired at unarmed complainant party standing on road, whereby one person sustained vital injury and other persons sustained various types of injuries caused by the appellants-accused persons. Both these cases are the cases which were tried by the learned trial Courts and taken upto the Apex Court and on the strength of evaluation of the evidence led by the prosecution, the accused were not found punishable under Section 307 of the Indian Penal Code as referred to in para :14 of this decision. In the case of Merambhai (Supra) whether ratio of this decision or the decision in the case of State of Gujarat v/s. Kharwa Hiralal @ Iku Gagan (Supra), would help the petitioners at this stage is the question. In the case of Kharwa Hiralal @ Iku Gagan (Supra), the accused persons were hiding themselves on the top of a house i.e. terrace. At that time, the complainant Police Sub-Inspector while on his duty of patrolling, on receipt of information about the accused having hidden themselves on the terrace of one house, attempted to arrest them. At that time, the accused no.1 aimed a shot from his pistol towards the complainant Police Sub-Inspector but the aim of the pistol missed. The investigating Agency had collected a cartridge as muddamal from the terrace. The Division Bench of this Court on appreciation of evidence found that there are probabilities to infer that the shot was fired in air only to scare the Police Sub-Inspector and no intention for causing hurt or to commit murder can be said to have been established and this Court acquitted the accused from the charge punishable under Section 307 of the Indian Penal Code. In this decision, the Court has appreciated various facts including the height of the wall constructed covering the terrace and the fact that there were no marks whatsoever of firing on the terrace wall. This is also finding after appreciating the case of the prosecution. Here in the present case, number of injuries have been found on the forehead of the prosecution witnesses, three of them are female and one prosecution witness, namely Ghanshyambhai, had specifically said that the fire was aimed at victims i.e. the residents of the society, it would be premature to conclude about the intention of the accused. The place where the incident occurred is undisputedly a piece of land where presence of victims was natural at the relevant point of time. The prosecution has recovered a firearm and that too an unlicensed country made firearm at the instance of the accused. The opinion of the ballistic expert also supports the version of the prosecution witnesses. So it would not be justified to enter into the appreciation of the evidence collected by the prosecution. The backbone of the submission of Ms.Nandini Joshi, ld. A.P.P., is that the petitioners cannot even indirectly submit to this Court that version of Ghanshyambhai being not consistent to other prosecution witnesses, should be ignored or the intention of the accused should be inferred. There is no scope to appreciate the evidence at this stage especially because the learned Additional Sessions Judge cannot be said to have committed any grave error or illegality in framing the charges and disposing the application exh.5 by an impugned order.
8. In the case of Niranjan Singh (Supra), of course the Apex Court dealing with a Special Leave Petition has observed that the material documents placed on record relied on did not prima facie disclose the commission of the offence punishable under Section 3(1) of the TADA [Terrorists and Disruptive Activities (Prevention) Act,1987] and it is held that the designated Court was justified in taking view to that effect. Shifting of evidence to arrive at a conclusion that an offence punishable under a special statute namely TADA is made out or not can be made. This principle is mainly accepted in all cases where the prosecution is under a special statute and the learned Additional Sessions Judge was also supposed to look into the material placed before him when he was considering the stand taken by the petitioners invoking jurisdiction of the concerned Sessions Court to discharge the accused persons in light of scheme of Sections 227 and 228 of the Criminal Procedure Code.
9. Even if the ratio of the decision of Niranjan Singh (Supra) is accepted, even then this Court is of the view that the learned Additional Sessions Judge has correctly appreciated the facts prima facie while dealing with the application exh.5. This is the case of clear application of mind by the learned Additional Sessions Judge and evaluation of the story of the prosecution and ingredients emerging therefrom. The decisions, which were placed before the learned Additional Sessions Judge and now before this Court, are cases decided on merit and that too by the Apex Court and one by the Division Bench of this Court. The motive is specifically brought by the prosecution on record, time and place of the incident are not a matter of much controversy. Merely because none of them have died or the bullets could not hit the vital part of the body of the mob, which was aimed at, as per the prosecution witness Ghanshyambhai, it would not be justified for this Court to say that the finding recorded by the learned Additional Sessions Judge is erroneous. There is no element of illegality or perversity in the order under challenge. When the opinion of ballistic expert also supports the version of the prosecution witnesses and the intention or knowledge which normally can be inferred from the conduct of the parties and that too on appreciation of the evidence led by the prosecution during the course of trial, the accused cannot be discharged from the charges levelled against them. The Court is not impressed by the arguments of Mr.Ravani that the victim persons have not sustained grievous injuries; and if the intention of the group of accused persons was to commit murder any way of any of the persons from the occupants of the land in question or to scare them as to they will have to face the same consequences, then they would not have left the place themselves without doing so. At least, they would have caused grievous hurt but more than one female victims have been given blows on their head and head is undisputedly a vital part of the body. They were taken to the hospital in a bleeding condition. It is likely that looking the furious mood of the mob and the strength of the people that might have gathered in a couple of minutes, the accused might have left the spot of incident. The conduct of leaving the place of incident of the accused is a matter of appreciation of the evidence on merit.
10. For short, there is no merit in the present Revision Application. The findings of the learned Additional Sessions Judge are absolutely in accordance with law and, therefore, no interference is warranted and, hence, the Revision Application is hereby dismissed. Notice discharged.