CR.A/87620/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 876 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ====================================== 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 ? ====================================== ARJANBHAI GAGJIBHAI NANDODA Versus STATE OF GUJARAT & ANOTHER ====================================== Appearance : MR KJ SHETHNA, Senior Advocate, with Mr Adil P Mehta for the Appellants Ms Mita Panchal, Additional Public Prosecutor for the respondents MR JIGAR P RAVAL for the original complainant ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/87620/2001 2/7 JUDGMENT Date : 18/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) This appeal is filed by the accused – appellants being aggrieved by the judgment and order of conviction dated 19.10.2001 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad in Sessions Case No.15 of 1997. The accused-appellants have been convicted as under:- (i) Accused Nos.5, 6, 10, 11, 12 and 13 have been convicted under Section 147 of IPC and sentenced them to suffer RI for one year. (ii) Accused Nos.5, 6, 10, 11, 12 and 13 have been convicted under Section 148 of IPC and sentenced them to suffer RI for one year. (iii) Accused Nos.5, 6, 10, 11, 12 and 13 have been convicted under Section 302 read with Section 149 of IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.100, in default, to undergo RI for one month. (iv) Accused Nos.5, 6, 10, 11, 12 and 13 have been convicted under Section 324 read with Section 149 of IPC and sentenced them to suffer RI for one year. (v) Accused Nos.5, 6, 10, 11, 12 and 13 have been convicted under Section 135 read with Section 37(1) of the Bombay Police Act but did not impose any sentence. The case of the prosecution was that on 1st September 1996 at 7 AM Nagjibhai Vastabhai Bharwad along with his cattle had gone for grazing the same in the village Malanpur. At about 3 to 4 PM in the evening while he was returning with his herd, at that time, his brother CR.A/87620/2001 3/7 JUDGMENT Bhojabhai, deceased, who had earlier gone to village Mandal for making settlement with the Bharwads was seen coming on a motorcycle. That motorcycle was being driven by Deva Ratna. Following him in a jeep there were few Bharwards like Surabhai Bhawanbhai, Bhojabahi Ramabhai, Sartanbhai Sedhabhai, etc. At that time a tractor being driven by Arjan Galaji was tehre and in jeep Natha Patha and other accused persons were there. They were armed with various weapons. The accused persons stopped his brother by stopping the motorcycle. At that time, Natha Patha fired a shot from his revolver. Accused No.6 - Bakul Gagji gave a dharia blow on the middle portion of head and so also accused No.12 – Kanu Ratu Ratna gave a dharia blow on the ear of Bhojabhai Vastabhai. After that, other Bharwards joined them and after Arjan Gagji crushed his brother's head by his tractor and they had left the scene of the offence. Thereafter, he went home and there he enquired about the accused persons and returned at the scene of offence. At that time police came. Then, investigation proceeded and FIR was lodged after going to police station. Per contra, the case of the defence was that accused Nos.1 to 13 were not even present at the scene of offence. They have been involved by animosity. There is no gun shot injury and therefore the case is exaggerated. In fact, Accused No.14 Arjanbhai Amrabhai had gone to his field where jowar crop was standing and there it was found that about 30 cows of Bhojabhai Vastabhai were there and he was grazing them. At that time, on being resisted, Bhoja Vasta confronted Arjanbhai on which Arjan Amrabhai wanted to go to the police station to lodge police report. While he was going to the police station to lodge police report, at that time, Bhojabhai Vastabhai - deceased came on tractor and at that time he lost control over the steering and had fallen down and was crushed under the wheel of tractor. This information was lodged CR.A/87620/2001 4/7 JUDGMENT with the FIR first in point of time. After considering the case of both the parties, the trial Court convicted six appellants. We have examined the case of the prosecution. In support of prosecution case, the prosecution has examined six eye witnesses: Apart from the deceased, there were two injured persons – Surabhai Bhawanbhai and Bhojabhai Ramabhai. They sustained minor injuries. The principal case is only against Arjan Gigabhai who has crushed the head of the deceased by the front wheel of the tractor. The other injuries on the person of Bhojabhai are said to be caused by accused No.2 – Bakul on the head by dharia and by Kanu Ratu gave a dharia blow on the ear lobe. The learned counsel for the appellant criticizing the testimony of PW No.4 – Nagjibhai Vastabhai Bharwad stated that though he saw his brother being beaten, the complainant did not do anything to interfere and save his life. He has falsely tried to implicate all the accused persons. It is also submitted that the complainant had admitted that at the scene of occurrence he had not given the complete details to the police and though the incident had taken place in the evening the FIR was recorded at about 7 to 8 PM. This witness is stated to have said that except shot fired at by the accused No.1 – Natha Patha and the dharia blow given by Accused No.6 -Bakul Gagju he has not witnessed other accused causing injuries on the person of the deceased. He has also stated that while the deceased was put in water as to who has caught hold of his hands and legs. He has also stated that he has no idea as to which portion of body of the deceased was run over by the tractor. In his cross-examination he admitted that the front wheel of the tractor was on the head of the deceased. He also admits that he has not CR.A/87620/2001 5/7 JUDGMENT stated that he has informed to police that his brother's head was crushed. Criticising the testimony of this principal witness and late recording of the FIR, the learned counsel submitted that this witness has not witnessed the incident at all. So also the other witnesses have been criticised by the learned counsel who have not witnessed the occurrence. They have taken only chance to depose. In this background the prosecution case has been criticised by the learned counsel and not proved against the accused persons. Learned counsel submitted that originally 14 accused persons have been named out of which eight persons have been acquitted. The injuries attributed to six accused persons including Arjanbhai Gagjibhai, who is said to have crushed the head of the deceased, are simple and therefore their conviction as recorded by the trial Court with the aid of Section 34 and 149 cannot be sustained. At best, if at all the best case of the prosecution is believed, Accused No.6 - Bakul Gagji and Accused No.12 – Kanu Ratu Ratna who are attributed with dharia blows can be convicted under Section 324 of IPC and not under Section 302 of IPC. As regards Arjan Gagjibhai is concerned, this tractor having run over the head was only an accident and he also cannot be attributed with the offence under Section 302 and therefore his conviction under Section 302 of IPC is also not sustainable. The persons who are alleged to have fired gun shots have been acquitted because there are no gun shots. Therefore, in the fitness of things, Bakulbhai Gagjibhai and Kanubhai Ratubhai be convicted under Section 324 read with Section 34 of IPC and Arjanbhai Gagjibhai can be suitable dealt with. Per contra, the learned Additional Public Prosecutor submitted that it was a mob unlawfully encircled the deceased and done away with his life and therefore each and every accused can be said to be sharing CR.A/87620/2001 6/7 JUDGMENT common background. In that background, the conviction recorded by the trial Court is not liable to be challenged. We have heard the learned counsel for the parties. We have carefully considered the submissions. Out of six persons, if we leave Arjanbhai Gagjibhai the other accused persons have not been stated to have caused any injury which can be attributed to them, which was responsible for death. Therefore, their case has to be considered separately and they can be suitably dealt with. Those persons who have been actually attribued with the injury, they can be convicted. In that view of the matter, Bakulbhai Gagjibhai and Kanubhai Ratubhai having caused dharia injuries on the person of the deceased, which are simple in nature, can be convicted under Section 324 of IPC with the aid of Section 34 of IPC instead of under Section 302 read with Section 34 of IPC. Since 8 other accused persons have been given benefit of doubt, the rest of the accused persons i.e. Pareshbhai Nathabhai, Arjanbhai Ajmalbhai, Kamabhai Amrabhai also deserve benefit of doubt and they deserve to be acquitted. Except Bakulbhai, the other accused persons are on bail. They are being acquitted and their bail bonds are ordered to be cancelled. Bakulbhai Gagjibhai is acquitted of the principal offence under Section 302 of IPC and is convicted under Section 324 read with Section 34 of IPC along with Kanubhai Ratubhai who is also convicted under Section 324 read with Section 34 of IPC and are sentenced to the period already undergone. CR.A/87620/2001 7/7 JUDGMENT As far as Arjanbhai Gagjibhai is concerned, even though the defence case is that it was an accident while turning of the tractor, he, in his valour, might have driven the tractor over the deceased and therefore his conviction under Section 302 of IPC is rightly made by the trial court. Since he alone was responsible, the death is punishable under Section 302 of IPC simplicitor and not with the aid of Section 34 of IPC. Therefore, his conviction under Section 302 of IPC read with Section 34 of IPC is altered into conviction under Section 302 of IPC simplicitor. He has to serve out his sentence. Accused Bakulbhai Gagjibhai is behind the bars. He is ordered to be set at liberty forthwith if not required in any other case. Appeal is partly allowed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd