Gujarat High Court
The State Of Gujarat vs Abhubhai Govindbhai Sitapara & ... on 14 March, 2016
Author: M.R. Shah
Bench: M.R. Shah, Mohinder Pal
R/CR.A/1639/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1639 of 2006
With
CRIMINAL APPEAL NO. 2074 of 2008
With
CRIMINAL APPEAL NO. 1638 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE MOHINDER PAL
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THE STATE OF GUJARAT....Appellant(s)
Versus
ABHUBHAI GOVINDBHAI SITAPARA & 1....Opponent(s)/Respondent(s)
================================================================
Appearance:
Criminal Appeal No.1639 of 2006 With Criminal Appeal No.2074 of 2008
MR RAKESH PATEL APP for the Appellant(s) No. 1
MR KIRTIDEV R DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
-2
MR RAHUL K DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1 -
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2
Criminal Appeal No.1638 of 2006
MR RAKESH PATEL, APP for the Appellant(s) No. 1
MR KAIVAN K.PATEL, ADVOCATE for Respondent(s) No.1-6
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 14/03/2016 and 15/03/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. As all these appeals arise out of the impugned judgment and order passed by the learned Sessions Judge (FTC No.2), Ahmedabad (Rural), Ahmedabad passed in Sessions Case No.7 of 2005, all these appeals are heard, decided and disposed off together by this common judgment and order.
2. At the outset, it is required to be noted that by impugned judgment and order the learned Trial Court has convicted the original accused Nos. 7 and 8 for the offences under Sections 304 part-I, 323, 504 read with Section 114 of the Indian Penal Code and has sentenced both of them to undergo 4 years R.I. with fine of Rs.1,000/- and in default to undergo 15 days S.I. for the offence under Section 304 part-I of the IPC and has sentenced them to undergo 6 months R.I. for the offence under Section 323 read with Section 114 of the IPC and 6 months R.I. for the offence under Section 504 read with Section 114 of the IPC. That by impugned judgment and Page 2 of 34 HC-NIC Page 2 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT order, the learned Trial Court has acquitted the original accused Nos. 1 to 6 for the offences for which they were charged / tried i.e. for the offences under Sections 147, 148, 323, 504 and 302 read with Section 149 of the IPC.
3. At this stage, it is required to be noted that so far as the impugned judgment and order of conviction passed by the learned Trial Court convicting the original accused Nos. 7 and 8 for the offence under Sections 304 part-I, 323, 504 read with Section 114 of the IPC is concerned, it has, as such, attained the finality as the original accused Nos. 7 and 8 have not challenged their conviction.
4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court acquitting the original accused Nos. 1 to 6, the State has preferred Criminal Appeal No.1638 of 2006.
5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court acquitting the original accused Nos. 7 and 8 for the offence punishable under Sections 302 read with Section 149 of the IPC, the State has also preferred the Criminal Appeal No.2074 of 2008.
6. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court by which the learned Trial Court while convicting the original accused Nos. 7 and 8 for the offences punishable under Section 304 part-I of the IPC has imposed the sentence of only 4 years R.I., State has preferred the Page 3 of 34 HC-NIC Page 3 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT Criminal Appeal No.1639 of 2006 for enhancement of the sentence.
7. The prosecution case in nutshell is as under:
7.1 That the original complainant, Pintuben, daughter of Kalubhai Sidibhai was residing with her family at village:
Vejalka, Taluka: Ranpur, District: Ahmedabad. That on 6.10.2004, in the evening at about 5.00 p.m., the complainant and her sister were present at their home and her father was grazing the cattle in the field which was just nearer or adjacent to their home. At that time, accused, Abhubhai Govindbhai Koli and Jayeshbhai Govindbhai Koli (original accused Nos.7 and 8) shouted from the fence and told the complainant's father that why he is grazing the cattle in their field and started abusing him. At that time, the complainant's father replied that he is grazing the cattle in his field.
Therefore, original accused Nos.7 and 8 abused him. At that time, the other accused persons (original accused Nos. 1 to 6)and one another came running with deadly weapons in their hands (axes). Therefore, apprehending that all of them will beat him, her father ran towards his house. At that time, all the accused i.e. original accused Nos. 1 to 6 armed with axes, the original accused Nos. 7 and 8 armed with lathis / sticks chased him and reached to the house. At that time, the original complainant and her sister tried to save their father, however, the original accused caused injuries to them due to which they fell down and dragged their father out from the house and inflicted the blows by sticks / lathis and axes. Their Page 4 of 34 HC-NIC Page 4 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT father received injuries at his legs, hands, face as well as skull and he fell down. That all the accused thereafter ran away from the place of incident. As per the case of the prosecution and the complainant, thereafter, she was waiting for her mother who had gone to sell grapes. At that time, the Sarpanch of the village received information about the said incident and police party also reached the place. That the complainant's father-deceased Kalubhai was taken to Dhandhuka Hospital for treatment but the Doctor declared him dead. That the original complainant as well as her sister as injured eye-witnesses were also taken to the Hospital for treatment as both of them also sustained injuries. That thereafter, original complainant lodged complaint against all the accused persons at Dhandhuka Police Station for the offences under Sections 147, 148, 149, 302, 323 and 504 of the IPC which was registered as C.R.No.I-1139 of 2004.
8. The aforesaid FIR was investigated by Shri Sahdevesinh Jitubha Gohil, PSI, Barvala Police Station. He recorded the statements of the concerned witnesses. He also managed for the postmortem report of the deceased, Kalubhai. He also sent Yadi to the Magistrate for inquest panchnama/report and inquest panchnama was drawn. He also drawn the panchnama of the place of incident. He arrested accused persons (except one of the absconding accused). He recovered the clothes of the original complainant as well as the deceased having blood stains which they sent to the FSL. That after the investigation was concluded, the Investigating Officer filed the charge-sheet against 8 arrested accused for the offence under Sections 147, 148, Page 5 of 34 HC-NIC Page 5 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT 149, 302, 323 and 504 of the IPC, in the Court of learned JMFC, Dhandhuka. That as the case was exclusively triable by the learned Court of Sessions, learned JMFC, Dhandhuka committed the case to the Sessions Court, Ahmedabad (Rural). That the learned Trial Court framed the charge against all the accused for the offence under Sections 147, 148, 149, 302, 323 and 504 of the IPC. That all the accused pleaded not guilty and therefore, all of them came to be tried by the learned Trial Court for the aforesaid offences.
9. To prove the case against the accused, the prosecution examined the following prosecution witnesses:
Sr. Exhibit
Name
No. No.
* Female Complainant of the injured person :-
1 Pintuben Kalubhai Sathaliya 34
* Injured witness who remained present at the time
of incident :-
2 Anita Kalubhai - Female witness 38
* Panch Witness of the recovery of weapon :-
3 Rajeshbhai Raghunathbhai Dalvadi - Panch
39
Witness
4 Rafikbhai Aadambhai Khatki -Panch Witness 45
* Panch Witnesses of the seizure of muddamal
clothes and weapons of the accused persons during discovery :-
5 Temubha Danubha Zala - Panch Witness 486 Dhirubhai Devjibhai Prajapati - Panch 49 Witness 7 Babubhai Talsibhai Dholakiya - Panch 51 Witness Page 6 of 34 HC-NIC Page 6 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT 8 Jayantibhai Thakarshibhai Dalvadi - Panch 62 Witness 9 Shailesh Shahbuddin Himani - Panch Witness 66 10 Yuvrajbhai Vaskurbhai Kathi- Panch Witness 69 * Independent Witnesses :-
11 Bhikhubhai Virsangbhai - Sarpanch-Witness 70 12 Savjibhai Manjibhai Patel - Witness 71 13 Pravinbhai Bhikhabhai Pagi- Witness 72 * Panch Witnesses of the Panchnama of Place of Incident :-
14 Savjibhai Ravjibhai Lapani - Panch
63
Witness
15 Bhupatbhai Bhimbhai Khachar - Panch
65
Witness
* Medical Officers :-
16 Dr.Bhaveshbhai Ratilal Parikh 73
17 Dr.Balchandbhai Khemabhai Vaghela 79
* Investigating Officer - Witness :-
18 Mr. Sahdevsinh Jitubha Gohil - I.O. 89
* Police Witness who informed about the
incident :-
19 Harshadbhai Virjibhai Ninama - A.S.I.
82
- Witness
20 Vishnubhai Ramjibhai Jadav
96
- Un Armed Head Constable - Witness
* Government Witnesses :-
21 Jitubhai Rupabhai Parmar - Talati cum
85
Mantri - Witness
22 Bhikhubhai Jivrambhai Parmar - Circle
87
Officer - Witness
* Wife of Victim :-
23 Gauriben Kalubhai Sidi (Devipujak) - Lady
97
Witness
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10. Through the aforesaid witnesses, the prosecution also brought on record the following documentary evidences.
Exhibit Sr. Particulars of Document No. No. 1 Telephone Wardhi (Wireless Message). 90 2 Original Complaint. 35 3 Inquest Panchnama. 52 4 Form of Dying Declaration Report. 91 5 Panchnama of the scene of offence 64 Panchnama of Inspection of the place of 6 53 incident carried out by F.S.L. Officer.
7 Report of the Investigation Unit of F.S.L. 54Panchnama of the seizure of the clothes on 8 55 dead body.
Panchnama about the seizure of the clothes put on by accused nos. 1 to 4 during incident 9 40 and the weapons used by them at the time of incident.
Panchnama of the seizure of the weapons used 10 by the accused persons at the time of 46 incident.
Panchnama of the seizure of the weapons used 11 by the accused persons at the time of 47 incident.
Panchnama of the seizure of the weapons used 12 by the accused persons at the time of 97 incident.
Panchnama of the seizure of the clothes put 13 on by accused nos. 1 to 4 at the time of 44 incident Panchnama of the seizure of the clothes put 14 50 on by accused persons at the time of incident 15 P.M. note of the deceased. 76 Yadi for treatment of the deceased who 16 sustained injury. 94 Page 8 of 34 HC-NIC Page 8 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT Medical Certificates of the treatment of the 17 complainant and witness who sustained 74, 75 injury.
Letter written by the Doctor of Dhandhuka 18 56 addressing to F.S.L. Receipt of F.S.L. about receiving of 19 57 muddamal.
20 Dispatch note about the muddamal. 58Letter of F.S.L. about the examination of 21 77 muddamal.
22 Analysis Report of F.S.L. 7823 Analysis Report of Serological Department. 59 24 Abstract of Village form no. 6 86 Treatment Certificate of the accused Jayesh 25 81 Govind Koli.
26 Photo copy of the abstract of Station Diary. 83
11. That after closing pursis submitted by the prosecution at Exh.98, further statements of the accused were recorded under Section 313 of the Criminal Procedure Code. Except bare denial, nothing was stated by the original accused in support of their defence. They also did not examine any defence witnesses and/or led any documentary evidences in support of their defence.
12. At the conclusion of the trial, learned Trial Court by impugned judgment and order has acquitted the original accused Nos.1 to 6 from all the offences for which they were tried. However, the learned Trial Court has convicted the original accused Nos.7 and 8 for the offences under Sections 304 part-I, 323, 504 of the IPC and has sentenced original accused Nos. 7 and 8 to undergo the sentence for the offence under Sections 304 part-I, 323, 504 of the IPC stated herein above.
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13. Feeling aggrieved and dissatisfied with the impugned judgment and order, the State has preferred the present appeals as stated herein above. At the cost of repetition, it is required to be noted that so far as the impugned judgment and order convicting the original accused Nos. 7 and 8 for the offence under Sections 304 part-I, 323, 504 of the IPC for having committing the death of deceased Kalubhai, and causing the injury on the original complainant and her sister (injured eye-witness) is concerned, has attained finality and it is reported that original accused Nos. 7 and 8 have also undergone the sentence imposed by the learned Trial Court by the impugned judgment and order.
14. Shri Patel, learned APP has appeared on behalf of the State in all these appeals, Shri Kirtidev R. Dave, learned advocate has appeared on behalf of original accused Nos.7 and 8 and Shri Kaivan K. Patel, learned advocate has appeared on behalf of the original accused Nos. 1 to 6 in Criminal Appeal No.1638 of 2006.
15. Shri Rakesh Patel, learned APP appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned Trial Court has materially erred in acquitting the original accused for the offences under Section 302 of the IPC.
16. It is submitted that the learned Trial Curt has materially erred in convicting the original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC.
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17. It is submitted that the learned Trial Court has materially erred in not convicting the original accused for the offences under Section 302 of the IPC read with Section 147, 148, 149 of the IPC.
18. It is further submitted by Shri Patel, learned APP appearing on behalf of the State that the learned Trial Court has materially erred in observing and holding that the prosecution has failed to prove that all the accused were members of the unlawful assembly with a common object to cause death of the deceased-Kalubhai.
19. It is submitted that considering the facts emerging from the material on record which is emerging from the deposition of that injured eye-witnesses, PW-1, Pintuben PW-2, Anitaben.
20. First quarrel took place between original accused Nos. 7 and 8 and the deceased at the field where the deceased was grazing the cattle and thereafter, the original accused Nos. 7 and 8 armed with the sticks and the other accused armed with the axes chased him. The deceased who was running towards his house and he in fact reached his house and at that time, the injured witnesses, PW-1 and PW-2 who are minor daughters tried to save their father. The accused persons first caused the injuries on the injured eye-witness PW-1 and PW-2 and they fell down and thereafter, the accused dragged the deceased from the house and caused serious injuries by the deadly weapons i.e. axes (sharp edged weapon) and the lathis and sticks and due to which the deceased sustained multiple fractures Page 11 of 34 HC-NIC Page 11 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT and other injuries and even suffered / sustained the fracture on the skull and there was bleeding, the learned Trial Court ought to have held all the accused were part of the unlawful assembly with an object to cause the death of the deceased and thereby ought to have convicted all the accused for the offences for which they were charged / tried, more particularly for the offence under Section 302 read with Section 149 of the IPC.
21. Shri Patel, learned APP appearing on behalf of the State has further submitted that while acquitting the original accused Nos. 1 to 6, the learned Trial Court has materially erred in observing that the original accused Nos. 1 to 6 had gone to the place of the incident just to see what happened when they heard the shouting. It is submitted that as such, that was not even the defence on part of the original accused nos. 1 to 6. It is submitted that if that be so, in that case, there was no reason for the accused Nos. 1 to 6 to go with the deadly weapon like axes.
22. It is further submitted by Shri Patel, learned APP appearing on behalf of the State that learned Trial Court has materially erred in acquitting original accused Nos.7 and 8 for the offences under Sections 302 of the IPC and convicting them for offence under Section 304 part-I of the IPC by observing that the deceased was aggressor and just gave blow by stick on the back side of the original accused No.8, Jayeshbhai. It is submitted that the learned Trial Court has heavily relied upon the deposition of Dr.Balchandbhai K.Vaghela, PW-17 and the history given by Page 12 of 34 HC-NIC Page 12 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT the original accused No.8 before said Dr.Balchandbhai K.Vaghela that the deceased has caused the injury and has beaten him by dhoka. It is submitted that, however, that was not even the defence on behalf of the original accused Nos. 7 and 8 that the deceased was aggressor. It is further submitted that in any case, thereafter, all of them, original accused Nos. 7 and 8 and the other accused, chased the deceased when he was running towards his house and when he reached the house, the accused persons caused serious injuries on the deceased as well as injuries on eye-witnesses PW-1 and PW-2. It is submitted that therefore, the learned Trial Court has materially erred in acquitting the original accused (original accused Nos. 1 to 8) for the offence punishable under Section 302 of the IPC read with Section 149 and Section 147, 148 of the IPC and convicting the original accused Nos.7 and 8 for the offence under Section 304 part-I of the IPC only.
23. Making above submissions, it is requested to allow the Criminal Appeal Nos.1639 of 2006 and 2074 of 2008 and to quash and set aside the impugned judgment and order passed by the learned Trial Court acquitting the original accused (original accused Nos. 1 to 8) for the offence punishable under Sections 302 read with Section 149 of the IPC and sentence them to undergo the life imprisonment.
24. In the alternative and in support of Criminal Appeal No.1639 of 2006, it is vehemently submitted by Shri Patel, learned APP appearing on behalf of the State that in the facts and circumstances of the case, the learned Trial Page 13 of 34 HC-NIC Page 13 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT Court has materially erred in imposing the sentence of 4 years R.I. only while convicting the original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC.
25. It is submitted that the manner in which the deceased was done to death and he sustained multiple fractures on various parts of his body, including the fracture on the skull / head which is proved to be fatal, the learned Trial Court ought to have imposed the maximum sentence provided under Section 304 part-I of the IPC.
26. It is submitted that as such, no cogent reasons have been given by the learned Trial Court while imposing the sentence of 4 years R.I. only for the offence under Section 304 part-I of the IPC. It is submitted that while imposing the sentence of 4 years R.I. upon original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC what has been weighed with the learned Trial Court is that both the accused were young and that they are unmarried. However, it is submitted that the aforesaid cannot be said to be a cogent reason/ ground to impose lesser punishment, when both of them along with others caused death of the deceased. It is submitted that therefore while imposing the sentence, the learned Trial Court has not exercised the discretion judiciously.
27. It is vehemently submitted as per catena of decisions that the Court is required to impose appropriate punishment, commensurate with the gravity of the offence.
In support of the above submissions, learned APP has
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relied upon the following decisions of the Hon'ble Supreme Court.
(i) In the case of Abdul Waheed V/s. State of Uttar Pradesh reported in (2016) 1 SCC 583; and
(ii) In the case of Raj Bala V/s. State of Haryana and others reported in (2016) 1 SCC 463.
28. Shri Patel, learned APP has submitted that aforesaid submissions are made without prejudice to his rights and contentions that the learned Trial Court ought to have convicted all the accused for the offence under Section 302 of the IPC read with Section 149 of the IPC.
29. Both the Criminal Appeal Nos. 1639 of 2006 and 2074 of 2008 are vehemently opposed by Shri Kirtidev R. Dave, learned advocate appearing on behalf of original accused Nos. 7 and 8 and Criminal Appeal No.1638 of 2006 is vehemently opposed by Shri Kaivan K.Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6.
30. Shri Kirtidev Dave, learned advocate appearing on behalf of the original accused Nos.7 and 8 has vehemently submitted that in the facts and circumstances of the case and on appreciation of evidence, the learned Trial Court has not convicted the original accused Nos. 7 and 8 for the offence punishable under Section 302 of the IPC and has convicted the original accused Nos. 7 and 8 for the offence under Section 304 part-I and Sections 323 and 504 of the IPC, the same is not required to be interfered by Page 15 of 34 HC-NIC Page 15 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT this Court.
31. It is vehemently submitted by Shri Dave, learned advocate appearing on behalf of the original accused Nos.7 and 8 that as such, cogent reasons have been given by the learned Trial Court while not convicting the original accused Nos. 7 and 8 for the offence under Section 302 of the IPC and convicted the original accused for the offence under Section 304 part-I of the IPC.
32. It is submitted that as such, as rightly observed by the learned Trial Court that the deceased was the aggressor first and he gave the blow by stick on the back side of the original accused No.8, Jayeshbhai. It is submitted that therefore when it is observed and held by learned Trial Court that the deceased was aggressor and thereafter, the original accused Nos. 7 and 8 might have become angry and therefore might have used the sticks which they were having, learned Trial Court has not committed any error in convicting the original accused Nos.7 and 8 for the offence under Section 304 part-I of the IPC.
33. It is submitted that as such, original accused Nos. 7 and 8 were not aware that after the first incident and the quarrel between original accused Nos. 7 and 8 and the deceased reached his home and the original accused Nos. 7 and 8 followed him, the original accused Nos. 1 to 6 will also come there with him deadly weapon with axes and they will use the said weapon.
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34. It is submitted that therefore, it cannot be said that there was no intention of original accused Nos.7 and 8 to cause the death of the deceased when more particularly at the initial stage they chased the deceased.
35. It is further submitted by Shri Dave, learned advocate appearing on behalf of the original accused Nos. 7 and 8 looking to the injuries sustained by the deceased and that no specific overt act alleged against the original accused Nos.7 and 8 with respect to the fatal injuries, in the facts and circumstances of the case, the learned Trial Court has not committed any error in convicting the original accused Nos. 7 and 8 for the offences under Section 304 part-I of the IPC.
36. It is further submitted by Shri Dave, learned advocate appearing on behalf of the original accused Nos. 7 and 8 that in the facts and circumstances of the case and in exercise of the discretion vested with the learned Trial Court and by giving cogent reasons when the learned Trial Court has thought it fit to impose the sentence of 4 years R.I. for the offence under Section 304 part-I of the IPC, the same is not required to be interfered by this Court in exercise of the appellate jurisdiction.
37. Making above submissions, it is requested to dismiss both the appeals being Criminal Appeal No.1639 of 2006 and Criminal Appeal No.2074 of 2008 and to confirm the impugned judgment and order passed by the learned Trial Court.
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38. Criminal Appeal No.1638 of 2006 is vehemently
opposed by Shri Kaivan K.Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6.
39. Shri Kaivan Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6 has vehemently submitted that as such, this is an appeal against the order of acquittal passed by learned Trial Court and therefore, unless and until it is found that the findings recorded by the learned Trial Court are perverse and/or contrary to the evidence on record and that the same has resulted into miscarriage of justice, interference of this Court against the order of acquittal is not called for.
40. It is submitted by Shri Kaivan Patel, learned advocate appearing for the original accused Nos. 1 to 6 that as such, there is no specific overt act alleged against the original accused Nos. 1 to 6 and it has not come on record that which weapon was used by which accused and that which was the weapon used by whom which proved to be fatal one.
41. It is submitted that as per the medical evidence on record and even deposition of Doctor, some of the injuries were only abressions and even the fractures which were possible by blunt weapon. It is submitted that all the accused Nos. 1 to 6 were alleged to have been armed with sharp cutting weapons - axes. It is submitted that therefore, when as per the cause of death, the deceased had died because of brain injury and multiple fractures of Page 18 of 34 HC-NIC Page 18 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT the body, the learned Trial Court has rightly acquitted the original accused Nos. 1 to 6.
42. It is further submitted by Shri Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6 that as all the accused Nos. 1 to 6 were having their Tabela and they were milking their cows in the Tabela which was just in the adjacent in the agriculture field and therefore, their presence was natural and therefore, the learned Trial Court has rightly acquitted the original accused Nos. 1 to 6 by observing that after having heard shouts, all the original accused Nos. 1 to 6 have reached at the place of incident to know what had happened. It is submitted that therefore, the impugned judgment and order passed by the learned Trial Court is not required to be interfered by this Court.
43. Making the above submissions and relying upon the decisions of Hon'ble Supreme Court in the case of Badal Murmu and Others V/s. State of West Bengal reported in (2014) 3 SCC 366 and in the case of Nagesar V/s. State of Chhatishgarh reported in (2014) 6 SCC 672, it is requested to dismiss the Criminal Appeal No. 1638 of 2006.
44. In the alternative, it is requested by Shri Kaivan Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6 not to convict the original accused Nos. 1 to 6 for the offence under Section 302 of the IPC with the aid of Section 149 of the IPC and to impose lesser punishment on original accused Nos. 1 to 6, i.e. either under Section 304 Part-I and/or Part-II of the IPC Page 19 of 34 HC-NIC Page 19 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT read with Section 149 of the IPC.
45. Shri Kaivan K.Patel, learned advocate appearing on behalf of the original accused No. 1 to 6 has stated that one of the accused must be old aged now as, at the time of incident, he was aged 65 years. It is requested to impose lesser punishment so far as the said accused is concerned.
46. Making the above submissions, it is requested to dismiss the Criminal Appeal No.1638 of 2006.
Date : 15/03/2016
47. Heard the learned advocates for the respective parties at length.
48. At the outset, it is required to be noted that all the accused were charged and tried for the offence under Sections 147, 148, 302 read with Section 149 of the IPC for the death of the deceased, Kalubhai Sidibhai and also for the offence under Section 323 of the IPC for having caused injuries on the injured eye-witnesses, PW-1 and PW-
2. The accused were also charged and tried for the offence under Section 504 of the IPC. At the outset, it is required to be noted that as such, by impugned judgment and order the learned Trial Court has convicted the original accused Nos.7 and 8 for the offence under Section 304 part-1 of the IPC as well as Sections 323 and 504 of the IPC. The learned Trial Court has sentenced the original accused Nos.7 and 8 to undergo 4 years R.I. for the offence under Section 304 part-I of the IPC. The Page 20 of 34 HC-NIC Page 20 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT learned Trial Court has also imposed separate sentence for the offence under Sections 323 and 504 of the IPC. As observed herein above, as such, the original accused Nos. 7 and 8 have not challenged their conviction by the learned Trial Court for the offence under Sections 304 part-I, 323 and 504 of the IPC. Therefore, the conviction of original accused Nos. 7 and 8 for the offence under Section 304 part-I for having caused death of deceased Kalubhai and their conviction for the offence under Section 323 of the IPC for having caused injuries on PW-1 and PW-2 and also their conviction for the offence under Section 504 of the IPC has attained finality. That by impugned judgment and order, the learned Trial Court has not convicted original accused No.7 and 8 for the offence under Sections 302, 147, 148 read with Section 149 of the IPC and has convicted the original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC. That by impugned judgment and order, the learned Trial Court has acquitted the original accused Nos. 1 to 6 from all the offences for which they were charged and tried. That the State has preferred the present appeals challenging the conviction of the original accused for the offence under Section 302 read with Section 149 of the IPC and convicted the original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC only and the State has preferred the appeal for enhancement of the sentence imposed by learned Trial Court while convicting the original accused Nos.7 and 8.
49. From the deposition of PW-1 and PW-2, who are injured eye-witnesses, the prosecution has been successful Page 21 of 34 HC-NIC Page 21 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT in proving that the presence of all the accused i.e. original accused Nos. 1 to 8 at the place of incident and also at the time of commission of the offence. All the accused as such were named by the PW-1 in her complaint. She has stood by what she has stated in the complaint / FIR. From the deposition of PW-1 and PW-2 - injured eye- witnesses, it emerges that initially there was some quarrel between the original accused Nos. 7 and 8 and the deceased in the agriculture field of the deceased when the deceased was grazing his cattle in his agriculture field. From the deposition of aforesaid two injured eye- witnesses, it further emerges that the original accused Nos.7 and 8 who were employed by original accused Nos. 1 to 6 were armed with lathis and they started shouting and giving abuses. Having heard shouting, the original accused Nos. 1 to 6 came with deadly weapons i.e. axes. Apprehending that all the accused persons will beat him, the deceased, Kalubhai, went to his house running to save him. It is to be noted that the house of the deceased, Kalubhai was just adjacent to his agriculture field. There was already a dispute going on between the deceased and original accused Nos. 1 to 6 with respect to the Tabela / land dispute. Earlier, 5 times cases were filed against original accused Nos. 1 to 6 for different incidents and for different offences. From the deposition of PW-1 and PW-2 it further emerges that when the deceased went to his house running to save him, the original accused Nos. 7 and 8 and the original accused Nos. 1 to 6 chased him. The deceased took shelter in his house. When the accused assaulted him, the injured eye-witnesses, PW-1 and PW-2, his minor daughters intervened and tried to save their Page 22 of 34 HC-NIC Page 22 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT father and in the said scuffle, the injured eye-witnesses i.e. PW-1 and PW-2 sustained injuries. Injuries on the PW- 1 and PW-2 are established and proved by the prosecution by leading cogent evidence and by examining Dr.Bhavesh Ratilal Parikh, PW-16 who has been examined at Exh.73 and by producing their medical certificates produced at Exh.74 and Exh.75. From the deposition of the aforesaid two injured eye-witnesses, it also emerges and was so stated by them that the deceased was dragged from his house and all the accused started beating the deceased, Kalubhai. At that time, original accused Nos. 1 to 6 were armed with axes and original accused Nos. 7 and 8 were armed with lathis/ sticks and all of them assaulted the deceased and beaten him due to which the deceased sustained serious injuries and multiple fractures and one of the fractures sustained by the deceased was on the skull / head. It is required to be noted that at the time of incident, only PW-1 and PW-2 who were minor daughters alone were present and as observed herein above, they also sustained injuries caused by the accused persons. That thereafter, the deceased was taken to hospital where he was declared dead. It is not in dispute that death of the deceased was homicidal death.
50. That despite the above, the learned Trial Court has acquitted the original accused Nos. 1 to 6 by observing that the deceased Kalubhai was the first aggressor and he caused the injury and he gave the blow by stick on the back of the original accused No.8-Jayeshbhai and also by observing that original accused Nos. 1 to 6 having heard the shouting must have gone to the place of incident to Page 23 of 34 HC-NIC Page 23 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT see the incident. However, it is required to be noted that it was not the defence of the original accused that the deceased was aggressor first and/or that the original accused Nos. 1 to 6 after having heard the shouting, they went to the place of incident. It is also required to be noted that as such, after the first incident had occurred at the agriculture field between the original accused Nos.7 and 8 and the deceased, the deceased went to his house after running to save him and at that time, the accused chased him and dragged the deceased from his house. Therefore as such, all the accused went to the place of incident - house of the deceased with deadly weapons.
51. The learned Trial Court has not believed the unlawful assembly with common object to cause the death of the deceased simply by observing that at the time when first incident had taken place, the original accused Nos. 1 to 6 were not present and that they were found present at the time of second incident i.e. at the house of the deceased and that all the original accused Nos. 1 to 8 came subsequently. That the learned Trial Court has committed an error in not believing the unlawful assembly with common object to cause the death. When all the accused went to the place of the deceased with deadly weapons and original accused Nos.1 to 6 were armed with axes and the original accused Nos. 7 and 8 were armed with sticks / lathis and dragged the deceased from his house and assaulted him and caused serious injuries which resulted into multiple fractures on the entire body, we are of the firm opinion that all the accused were members of the Page 24 of 34 HC-NIC Page 24 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT unlawful assembly with a common object to cause death of the deceased.
52. At this stage, the decisions of the Hon'ble Supreme Court in the cases of Bhanwar Singh and others (supra) and Ramesh and others (supra) are required to be referred to. In the case of Ramesh and others (supra), the Hon'ble Supreme Court has observed and held that common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is further observed that in such a case that even each of the accused did not commit some illegal overt act. It is observed that to attract the mischief of Section 149 of the IPC, it is not necessary that each of the accused must commit some illegal overt act. It is observed that when the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of assembly. The Hon'ble Supreme Court has further observed that it has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly.
53. In the case of Bhanwar Singh and others (supra), it is observed by the Hon'ble Supreme Court that common object need not be the product of prior concert but may form on the spur of the moment.
54. Applying the law laid down by the Hon'ble Supreme Page 25 of 34 HC-NIC Page 25 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT Court in the aforesaid two decisions to the facts of the case on hand and when the prosecution has been successful in proving the presence of all the accused at the time of commission of offence and at the place of incident and that the incident had occurred just outside the house of the deceased and that all the accused went to the house of the deceased with deadly weapons like, axes, sticks/ lathis, the prosecution has been successful in proving that all the accused were members of the unlawful assembly with a common object. Under the circumstances, the findings recorded by the learned Trial Court that the original accused were not the members of the unlawful assembly with a common object cannot be sustained. The reasoning and finding recorded by the learned Trial Court while holding that the prosecution has failed to prove that all the accused can not be said to be the members of the unlawful assembly with a common object are, as such, perverse and/or contrary to the evidence on record, which cannot be sustained.
55. From the deposition of PW-1 and PW-2 and as observed herein above, all the accused were the members of unlawful assembly with common object and were armed with axes and sticks / lathis. That all of them dragged the deceased from his house and caused the serious injuries. The deceased sustained multiple fractures and following injuries:
(i) Abrasion on the joint of the right shoulder of the size of 4 cm x 2 cm.Page 26 of 34
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(ii) Abrasion below right eyebrow of the size of 2 cm x 1 cm.
(iii) Abrasion of the size of 3 cm x 1.5 cm, below and lateral to the right lateral angle of the eye, over the face.
(iv) Abrasion of the size of 2 cm x 1 cm, on the middle third part of the left lateral thigh.
(v) Abrasion of the size of 2 cm x 1 cm, on the hip joint. Which was about 5 cm lateral to the left anterior superior iliac spine.
(vi) An incised wound of the size of 3 cm x 1 cm, on the middle part of the left leg.
(vii) An incised wound of the size of 2 cm x 0.5 cm, on the third metatarsophalangeal joint of the right leg, which was obliquely situated and o.5 cm deep.
(viii) An incised wound of the size of 1 cm x 0.5 cm, vertically situated, on the right metatarsophalangeal joint.
(ix) An incised wound of the size of 2.5 cm x 0.5 cm, obliquely situated on the exterior part of the right eyebrow, which was obliquely situated. The margin of all these incised wound was sharp and its angles were pointed. There was a blood in all the injuries.
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On doing an external examination, the fractures as
mentioned below appeared.
(i) Clinically fracture of the left ankle joint and fracture of lower third of the left tibia and fibula.
(ii) Clinically fracture of the right ankle joint and lower third of the right tibia and fibula.
(iii) Clinically fracture of the right middle finger metatarsophalangeal joint.
(iv) Clinically fracture of the right wrist joint and fracture of the lower third of the radius and ulna.
All these injuries were Ante Mortem.
Internal Check-up
(i) Incised wound 2.5 cm x 0.5 cm in size obliquely sluated above downwards over the lareral part of the right eyebrow.
(ii) Fracture # of the frontal bone of the skull.
4. There was a fracture of the frontal bone of the Skull. The blood was present in cranial cavity and frontal lobe of the brain was compressed and contused.
56. As per the deposition of Doctor, injury Nos.1 to 5 were possible by stick / lathis and injury Nos.6 to 9 were possible by a weapon like axe. The cause of death mentioned in the postmortem report was due to "hemorrhagic and traumatic.. shock due to fractures of Page 28 of 34 HC-NIC Page 28 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT the body limbs".
57. It is the case on behalf of the original accused more particularly original accused Nos. 1 to 6, that even PW-1 and PW-2 have not specifically stated which accused had caused which injuries and/or no specific illegal overt act is alleged. It is the case on behalf of the original accused Nos. 7 and 8 that in fact they had no knowledge that subsequently original accused Nos. 1 to 6 would come to the place of incident with deadly weapon like axe. However, as observed herein above, the original accused Nos. 1 to 6 were armed with axes and original accused Nos. 7 and 8 were armed with lathis/ sticks. The deceased sustained multiple fractures and sustained serious injuries on the skull / head. As per the deposition of the Doctor, injuries sustained by the deceased were possible by the lathis/ sticks and the axes. As observed herein above, all the accused were members of the unlawful assembly with common object to cause death of the deceased and all the accused actively participated in commission of the offence. Merely because the witnesses have not specifically stated which accused had caused which injury, the accused cannot be acquitted. As observed and held by Hon'ble Supreme Court in the case of Bhanwar Singh and others (supra) firstly the common object need not be the product of prior concert but may form on spur of the moment. As observed herein above and as held by Hon'ble Supreme Court in the case of Ramesh and others (supra), to attract the mischief of Section 149 of IPC, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be Page 29 of 34 HC-NIC Page 29 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT unlawful and if offence is committed by any member of such unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. In the said decision also, the Hon'ble Supreme Court observed that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In the present case, there is overwhelming material to show that the accused were present at the time of incident/ commission of the offence i.e. at the house of the deceased and were armed with axes (original accused Nos. 1 to 6) and lathis/ sticks (original accused Nos. 7 and 8). All of them came to the place of occurrence and started assaulting together. As observed herein above, all the accused were the members of the unlawful assembly and the offences have been committed in pursuance of the common object and hence, each of them shall be liable to the offence committed by any member of the assembly. Under the circumstances, all the accused can be held guilty with the aid of Section 149 of the IPC.
58. Considering the deposition of PW-1 and PW-2 and Dr. Bhavesh Parikh (PW-16) and the medical evidence on record, the manner in which the accused caused the injuries on PW- 1 and PW-2 injured eye-witnesses and thereafter, caused the serious injuries by the axes and the lathis/ sticks and that too the deceased was all alone and the accused were 9 in numbers and that too, at the house of the deceased, the case would fall under Section 300 of the IPC and all the accused are liable to be convicted for the offence under Section 302 read with Section 149 of the Page 30 of 34 HC-NIC Page 30 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT IPC. The learned Trial Court has materially erred in convicting the original accused Nos. 7 and 8 for the offence under Section 304 part-I of the IPC for having caused the death of deceased, Kalubhai and even erred in imposing the sentence of 4 years R.I. only for the offence under Section 304 part-I of the IPC. As observed herein above, all the accused can be said to have committed the offence under Section 300 of the IPC punishable under Section 302 of the IPC read with Section 149 of the IPC.
59. Now, so far as the reliance placed upon the decision of the Hon'ble the Supreme Court in the case of Badal Murmu and others (supra) and another decision of Hon'ble the Supreme Court in the case of Nagesar (supra) relied upon by Shri Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6 is concerned, on considering both the decisions, we are of the opinion that none of the aforesaid decisions shall be applicable to the facts of the case on hand and/or shall be of any assistance to original accused Nos. 1 to 6.
60. In the case before the Hon'ble the Supreme Court in the case of Badal Murmu (supra) it was observed that on facts the Hon'ble Supreme Court altered the punishment from Section 302 to 304 part-II read with Section 149 of the IPC and considering the fact that the sentence already undergone by the accused was of almost 14 years it was directed to be treated as sentence imposed on them for Section 304 part-II of the IPC. Under the circumstances, aforesaid decision shall not be applicable to the facts of the case on hand.
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61. Even the decision of Hon'ble the Supreme Court in the case of Nageshwar (supra) also shall not be applicable to the facts of the case on hand and/or shall not be of any assistance to the accused. In the case before the Hon'ble the Supreme Court, the names of the accused were not mentioned in the FIR nor stated by some eye-witnesses. On facts and the evidence on record, the Hon'ble Supreme Court specifically observed and held that the prosecution has failed to prove that all the accused sad/set said common object of unlawful assembly. In the present case as observed herein above, all the accused are held to be member of the unlawful assembly with a common object to cause the death of the deceased.
62. In view of the above and for the reasons stated above and more particularly, considering the deposition of injured eye-witnesses PW-1 and PW-2, both are the injured eye-witnesses and are reliable and trustworthy and both of them have fully supported the case of the prosecution, all the accused are held to be guilty for the offence under Section 302 read with Section 149 of the IPC. All the accused are also held guilty for the offence under Section 323 and Section 504 of the IPC read with Section 149 of the IPC.
63. In view of the above, Criminal Appeal Nos. 1638 of 2006 and 2074 of 2008 are hereby allowed. The impugned judgment and order passed by the learned Sessions Judge (FTC No.2), Ahmedabad (Rural), Ahmedabad passed in Sessions Case No.7 of 2005 is hereby quashed and set Page 32 of 34 HC-NIC Page 32 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT aside. All the accused are held guilty for the offence under Sections 302, 323, 504 read with Section 149 of the IPC and are sentenced to undergo life imprisonment for the offence under Section 302 read with Section 149 of the IPC. All the accused are also sentenced to undergo 6 months R.I. for the offence under Section 323 read with Section 149 of the IPC and also sentenced to undergo 6 months R.I. for the offence under Section 504 read with Section 149 of the IPC.
All the sentences to run concurrently.
On the conviction for the aforesaid offences, all the accused be taken into custody forthwith to undergo the sentence imposed hereinabove.
In view of the order passed in Criminal Appeal No.1638 of 2006 and Criminal Appeal No.2074 of 2008, the Criminal Appeal No.1639 of 2006 which has been preferred by the State to enhance the sentence imposed by the learned Trial Court while convicting the original accused Nos.7 and 8 for the offence under Section 304 part-I of the IPC does not survive and the same stands disposed of.
Registry is directed to send Record and Proceedings to the learned Trial Court forthwith.
At this stage, Shri Kaivan K.Patel, learned advocate appearing on behalf of original accused Nos. 1 to 6 has requested to grant some time to the original accused Nos. 1 to 6 to surrender. Similar request is made by Shri Kirtidev R.Dave, learned advocate appearing on behalf of original accused Nos. 7 and 8. In the facts and Page 33 of 34 HC-NIC Page 33 of 34 Created On Thu Mar 17 01:18:15 IST 2016 R/CR.A/1639/2006 JUDGMENT circumstances of the case, time to surrender to the original accused Nos. 1 to 8 is hereby granted upto 22nd April, 2016.
(M.R.SHAH, J.) (MOHINDER PAL, J.) ashish Page 34 of 34 HC-NIC Page 34 of 34 Created On Thu Mar 17 01:18:15 IST 2016