Gujarat High Court
Rohit vs State on 10 August, 2010
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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CR.RA/21/2010 12/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 21 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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ROHIT
BABUJI THAKOR & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
BHARGAV N BHATT for
Applicant(s) : 1 - 2.
MS ML SHAH, APP for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/08/2010
ORAL
JUDGMENT
1. The petitioners are the original accused along with other co-accused in criminal complaint dated 19.7.2006 filed before Vejalpur police station, Ahmedabad alleged offences punishable under Sections 143, 147, 149, 148, 307, 332 of Indian Penal Code as also with Section 135(1) of the Bombay Police Act.
2. Pursuant to the said complaint, investigation was carried out. Charge-sheet came to be filed on 3.10.2006 which also included offence under Section 333 of IPC. Case was committed for sessions trial and numbered as Sessions Case No.96/2009. In the said case, the petitioners filed application exh.12 and prayed inter-alia that in exercise of powers under Section 227 of the Code of Criminal Procedure, since no offence under Sections 307 and 333 of the IPC are made out, they may be discharged of the said offences. Learned Additional Sessions Judge, Ahmedabad(Rural), Mirzapur, before whom the said application was heard, dismissed the same by his order dated 30.12.2009. This is the order which the petitioners have challenged in the present Criminal Revision Application.
3. Before adverting to the rival contentions brief facts may be noted :
3.1 In the complaint, complainant one Jabbarsing Balubhai Chauhan who at the relevant time was discharging his duties as Home Guard Jawan in border wing had alleged inter-alia that he was posted at Sonal Chowky, Juhapura area of Ahmedabad on 2.7.2006. Along with him other five Jawans of border wing are discharging duties there. They took turn in pairs of two Jawans at a time. He was assigned the duty of patrolling in morning from 7 to 10 and in the evening from 4 to 7.
With him another Jawan Jagabhai Vastabhai Desai was posted. Sometime before the date of incident one resident of the locality Suresh Sedaji Thakore was murdered. His assailant however, were not arrested. Supporters of the deceased were therefore, highly agitated. Complainant was posted specifically to ensure that no untoward incident happens on account of such surcharged situation. On the date of incident i.e. on 19.7.2006 when he was patrolling the area along with Jagabhai Vastabhai Desai at about 6 O' clock in the evening, near Vejalpur bus stand, he found a mob of about 15 to 20 supporters of deceased Sureshbhai Sedaji Thakore. Some two or three of these persons were carrying sticks and and one person had a bare knife. They were shouting and forcing people to shut down the shops. Thereupon his companion Jagabhai and police constable Ramanbhai Punjabhai asked the members of the assembly not to create trouble and not to shut the shops forcibly and asked them to disburse. Thereupon members of the crowd got excited saying the police is not doing anything and not arresting the murderers of Sureshbhai and they would like to finish them today. With that the man with knife and persons with him assaulted them with their weapons. The knife wielder with intention to kill him tried to give one blow on his chest. He however, turned around and received a blow on his side. At that time his companion Jagabhai tried to load his rifle in self defencce. One of the persons in mob kicked Jagabhai on his belly upon which Jagabhai fell down. Other persons of the crowd assaulted Jagabhai with sticks. He received injuries on his shoulder and hand. Other members of the crowd had given kick and fist blows. Police constable Ramanbhai was also pushed around at which time police van from Vejalpur police station arrived. Some of the members of the crowd were arrested on the spot. Rest escaped. He was brought to the hospital in a private car.
3.2 On the basis of said complaint, investigation was carried out, statements of witnesses were recorded, panchnama were drawn. Ultimately charge-sheet, as already noted, was filed. In the discharge application, the petitioners have mainly contended that from the evidence on record, it cannot be held that there was any intention to commit murder. Offence under Section 307 of the IPC is therefore, not disclosed. It is also contended that no one received grievous hurt and offence under Section 333 of the IPC is therefore, wrongly applied.
3.3 Learned Additional Sessions Judge however, was of the opinion that there is no case for dropping either of the two provisions. He took into account the statements of witnesses to the effect that a mob of 15 to 20 persons armed with weapons had assaulted the police persons. He further observed that as per such statements if Jagabhai had not loaded his rifle, assailant who had already given two knife blows by then would have given the third blow with intention to commit murder and may even have caused death. Learned Judge was further of the opinion on the basis of statements of witnesses that assailants knowing fully well that Ramanbhai and Jagabhai are public servants, caused grievous hurt. On these grounds, the discharge application came to be dismissed.
4. Learned counsel for the petitioner as well as learned APP for the State have taken me painstakingly through the statements of witnesses
5. On behalf of the petitioners it is contended that no grievous injury has been caused. Section 333 of IPC therefore, did not apply. It was further contended that there was no intention to commit murder. Such intention must be found out from attendant circumstances and injuries caused. It was therefore, submitted that order under challenge be set aside.
5.1 He contended that both the provisions are included to make the case trial by Sessions Court since rest of the offences are triable by Magistrate.
5.2 Learned counsel for the petitioners placed reliance on the following decisions :
1) Yogesh @Sachin Jagdish Joshi v. State of Maharashtra reported in AIR 2008 Supreme Court 2991.
2) State of Bihar v. Ramesh Singh reported in 1977 Cri.L.J. 1606.
3) Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others reported in 1990 Cri. L.J. 1869
4) Amrish Devnarayan Rajput v. State of Gujarat reported in 2006 Cri.L.J. 876.
5) Parsuram Pandey and others v. State of Bihar reported in AIR 2004 Supreme Court 5068.
6) Dharma Pal and others v. State of Punjab reported in AIR 1993 Supreme Court 2484.
6. On the other hand, learned APP drew my attention to different statements of witnesses recorded by the investigating agency. She contended that injury to the complainant was serious. The mob were armed with deadly weapons such as knife, sticks, etc. They assaulted the police party. Learned Judge therefore, committed no error.
7. Having thus heard learned advocates appearing for the parties, from the perusal of material on record, I find that so far as injury to the complainant is concerned, same cannot be categorized as grievous hurt. Term grievous hurt has been defined in Section 320 of the IPC in the following manner :
320.
Grievous hurt.- the following kinds of hurt only are designated as grievous .-
First.-
Emasculation.
Secondly.-Permanent privation of the sight of either eye.
Thirdly.-Permanent privation of the hearing of either ear.
Fourthly.-Privation of any member or joint.
Fifthly.-Destruction or permanent impairing of the powers of any member or joint.
Sixthly.-Permanent disfiguration of the head or face Seventhly.-Fracture or dislocation of a bone or tooth.
Eighthly.-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
For obvious reasons clauses first to seventhly do not apply in the present case. Clause eighthly of Section 320 of the IPC would require closer look.
8. Injury certificate on record reveals that the complainant had received CLW of 5 cm x 2 cm below chest of unascertainable depth. He was admitted in hospital on 19.7.2006 at 7 O' clock and discharged from hospital on 23.7.2006. He thus remained in hospital barely for five days. Admittedly, he had received no fracture. It is difficult to appreciate how such an injury can be described to be one which endangers life or which causes sufferer to be in severe bodily pain or makes him unable to follow his ordinary pursuits for a period of twenty days.
9. In the result, I do not find that complainant received grievous hurt. Admittedly, no other person received grievous hurt. Section 333 of IPC prescribes punishment for voluntarily causing grievous hurt to deter public servant from his duty. Since I find that no grievous hurt is caused, Section 333 of IPC would not apply.
10. Coming to the question of applicability of Section 307 of IPC, the same, as is well known, prescribes punishment for attempt to murder. Section 307 reads as follows :
307.
Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinabove mentioned.
Attempts by life convicts.-[When any person offending under this section is under sentence of [imprisonment for life], he may,if hurt is caused, be punished with death.]
11. Question is whether in facts of the present case taking the statements of the witnesses as unchallenged, offence under Section 307 of the IPC is disclosed. It is undoubtedly true that in all cases injury caused is not conclusive of the fact whether offence under Section 307 is made out and it is the intention or knowledge to causes injury which if had caused death, person would be guilty of murder which is of importance. Such intention or knowledge can be culled out from the attendant circumstances. In case of Parsuram Pandey and others(supra) , Apex Court observed as under :
To constitute an offence under Section 307 two ingredients of the offence must be present:-
(a) an intention of or knowledge relating to commission of murder ; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence of attempt to murder . Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under Section 302 of the IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the fire arm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under Section 307 of IPC.
12. Coming back to the facts of the present case, I find that the case of prosecution as emerging from different statements recorded during investigation is that a mob of about 15 to 20 persons had gathered. Some persons had knife in their hand. Two or three people had sticks. The complainant and other policemen stopped them from forcing people to shut their shops upon which they assaulted the police party. On the complainant one knife blow was tried to be given on chest. He turned around and received injury on the lower portion. One more blow was given on his wrist. His companion Jagabhai tried to load the rifle. He was kicked and beaten up upon which he fell down. If the intention of mob was to commit murder, there was no reason why they would have stopped at causing simple injuries. To my mind, learned Judge committed grave error in observing that if Jagabhai had not loaded rifle, assailants would have repeatedly given knife blows to the complainant and would have caused his death. None of the witnesses have stated that Jagabhai loaded his rifle and that upon which the crowd disbursed or that assault on the complainant stopped. In fact complainant and other witnesses stated that when Jagabhai tried to load his rifle, the members of the unlawful assembly assaulted him. One person kicked him in belly upon which he fell down and fist and kick blows were given by other members of the assembly. Thus it is not even the case of prosecution that if Jagabhai had not loaded the rifle, mob would have committed murder of complainant. In my opinion this conclusion of the learned Judge is not supported by any evidence on record. Under the circumstances it would appear that injuries caused by the members of the assembly were simple injuries and not grievous hurt. If intention of the crowd armed with knife and sticks was to commit murder, it is difficult to appreciate how despite the rifle carrying policeman having fallen down on the ground, no further injuries were caused. The intention gathered from material on record and attendant circumstances, it cannot be stated that intention or knowledge of assailant was to cause such bodily injuries as; if it had resulted in death would have amounted to murder. Under the circumstances, in my opinion offence under Section 307 of the IPC is also not disclosed.
13. On both counts therefore, petition is required to be allowed. Counsel for the petitioners fleetingly argued that police persons were not in their uniforms. Members of the assembly therefore, had no knowledge that they were public servants and therefore, no offencce under Section 332 of the IPC also would be made out. It is clarified that this aspect is not part of the present proceeding and there is prima facie evidence to suggest that members of the assembly were conscious that the complainant, Jagabhai and police constable present were members of the police force. However, in absence of any specific issue in this regard, I am refraining from making any observations, leaving it open for the competent Court to take all the aspects of matter into consideration at the time of framing the charge.
14. In the result, the impugned order dated 30.12.2009 is set aside. Petitioners' application Exh.12 in Sessions Case No. 96 of 2009 stands allowed in terms of Para.4(B). The petitioners are discharged of offences punishable under Sections 307 and 333 of the Indian Penal Code.
15. Petition is disposed of accordingly.
(Akil Kureshi,J.) (raghu) Top