CR.A/135/1995 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 135 of 1995 With CRIMINAL APPEAL No. 160 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= HIRABHAI DIPABHAI VASAIYA & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : CR.A 160/1995 MS PB SHETH for MR ATUL MEHTA for Appellant(s) : 1 MR PD BHATTE, APP for Opponent(s) : 1, CR.A 135/1995 MR BY MANKAD FOR MR UM SHASTRI for Appellant(s) : 1 - 3. MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/05/2008 ORAL JUDGMENT CR.A/135/1995 2/8 JUDGMENT 1. These are appeals arising out of cross Sessions Case. Appellant of Criminal Appeal No. 160/1995 Mansing Kaljibhai Taviyad was accused No.1 in Sessions Case No. 96/1993. By impugned judgement and order dated 22.12.1994, he was convicted for offences punishable under Section 324 of the Indian Penal Code and sentenced to simple imprisonment for six months. He was also directed to pay fine of Rs. 500/-. 2. For the same incident, which took place on 30.6.1992, Mahendrabhai Mansinghbhai lost his life, giving rise to Sessions Case No.206/1992 against the four accused persons. Accused were convicted for offences punishable under Section 304 Part-II read with Section 114 of the Indian Penal Code and sentenced to rigorous imprisonment for three years and fine of Rs. 1000/- by the learned Additional Sessions Judge, Dahod by judgement dated 22.12.1994. 3. It may be noted that original accused No.1 Virabhai Dipabhai Vasaiya has not filed appeal against conviction. Original accused Nos. 2 to 4 are the original appellants in Criminal Appeal No.135/1995. 4. Insofar as Criminal Appeal No. 160/1995 is concerned, learned advocate Ms. Paurami Sheth for Mr. Atul Mehta for the appellant submitted at the outset that considering the passage of CR.A/135/1995 3/8 JUDGMENT time, the age of the appellant and other attending circumstances, even if conviction is upheld, accused may be given benefit of probation. She in fact, submitted that if the Court is inclined to grant probation, judgement convicting the appellant need not be examined at length. 5. Under the circumstances, for the reasons which are recorded in the later portion of the judgement since I am of the opinion that appellant of Criminal Appeal No. 160/1995 deserves to be granted benefit of probation, I am not discussing at length the nature of evidence against him. I have however, perused the material on record and find no infirmity in the conviction recorded by the learned Judge against him. 6. Insofar as Criminal Appeal No.135/1995 is concerned, as per charge-exh.1, it was alleged against the accused that on 30.6.1992, at about 11 O' Clock in the night accused No.1 and accused No.2 had given stick blows to deceased Mahendrabhai and other accused had given kick and fist blows to the deceased. They were thus charged with offences punishable under Section 302 read with Section 114 of the Indian Penal Code. It was further alleged that accused No.2 had given stick blows to mother of Mahendrabhai. Other accused had given kick and CR.A/135/1995 4/8 JUDGMENT fist blows. They were thus alleged to have committed offences punishable under Section 323 read with Section 114 of the Indian Penal Code. 7. Complainant Mansinghbhai Kaljibhai-PW3(exh.36) stated that on 30.6.1992 at about 8 O' Clock when he was standing outside his house, the accused passed by in drunken condition. He therefore, admonished them and told them not to use foul language. Thereupon, accused No.1 Vira Dipsing gave a stick blow on the head of Mahendrabhai. Mahendrabhai had therefore, fallen down. His wife tried to intervene upon which Hira Dipsingh accused no.2 hit her with a stick. A that time other two accused Dipsingh and Kamji were giving kick blows and they were hitting Mahendrabhai with sticks. Since he started shouting, others rushed to the spot and accused ran away. 8. Bai Chaturi Mansing-PW5 was examined at exh.39. She stated that at the night of incident, accused No.1 Vira had given stick blows to Mahendrabhai on head upon which Mahendrabhai had fallen down. Since she intervened, Kamji had given her blows with stick. When other people arrived, accused ran away from the scene of incident. 9. Sursingbhai Mansingbhai-PW6(exh.40) also stated that Vira Dipa had given stick blows to CR.A/135/1995 5/8 JUDGMENT Mahendrabhai on head. At that time, his mother had intervened to whom Hira had given stick blows. Other accused had hit Mahendrabhai with sticks. 10.Prosecution examined Dr. Nileshbhai Natvarbhai Thakker-PW1 at exh. 23. He had carried out the postmortem on the body of deceased Mahendrabhai. As external injuries, he found one scratch mark on the right shoulder of 2cm x 30mm. He had also found similar wound near the chest of 2cm x 25mm. In form of internal injury he had found on the left side of the skull, blood clotting of 15cm x 10 cm which had congested the brain. He also found that the lungs were congested. According to him, the death occurred due to subdural hemorrhage. 10.1 In the cross examination, he agreed that injuries in column No.17 were simple injuries and the internal injuries were not corresponding to the external injuries noted by him. He also opined that external injuries were not responsible for death. 11.Dr. Rajendrarav Raghunathrao Dante-PW2(exh.25) had treated Bai Chaturi. He had found one scratch injury on the head which was 1cm long and skin deep. 12.From the above evidence, it can be clearly seen CR.A/135/1995 6/8 JUDGMENT that death of Mahendrabhai had occurred on account of one stick blow given on his head. Other injuries were rather superficial and simple in nature. As per the Doctor, same could not have caused much damage muchless death of the deceased. Such injury by eyewitness account was caused by Vira Dipa original accused No.1. Other accused only gave kick blows to the deceased Mahendrabhai or to his mother Bai Chaturi. The appellants therefore, played no direct role in causing fatal injury. Admittedly there was no prior meeting of mind or conspiracy for causing death. Fight was as a result of sudden altercation. The appellant therefore, cannot be held vicariously liable for the injuries caused by accused No.1 Vira Dipa. They had at the best caused simple injuries to deceased Mahendrabhai or to his mother Bai Chaturi. Conviction of the appellants under Section 304 Part-II was therefore, wholly unjustified. Their conviction needs to be brought down to one under Section 323 of the Indian Penal Code. Sentence is accordingly reduced to six months of rigorous imprisonment. Direction for payment of fine remains unaltered. 13.In both the cases i.e. Criminal Appeal No. 160/1995 as well as Criminal Appeal No.135/1995, the incident is of the year 1992. 16 years have passed since then. Sole appellant of Criminal Appeal No.160/1995 was aged about 50 years on CR.A/135/1995 7/8 JUDGMENT the date of incident. He would be aged 67 by now. Appellant No.3 in Criminal Appeal No. 135/1995 was aged about 61 years when the incident took place. He would be close to 77 years of age. Considering the passage of time, considering the nature of conviction and sentence as also considering the fact that none of the accused have criminal antecedence nor are sated to have misused their liberty during trial or even pending appeal, I find that all the accused are required to be granted benefit of probation. 14.In the result, appeals are disposed of in following terms : 1) In Criminal Appeal No. 160/1995, conviction and sentence of the appellant is confirmed. Direction for payment of fine remains unaltered. The appellant however, is given benefit of probation and shall not have to serve out the sentence, if he executes bond of good behaviour for a period of one year before the trial Court latest by 30.6.2008. In case, he breaches the bond, he shall have to serve out the sentence. 2) In Criminal Appeal No.135/1995, conviction of the appellants under Section 304 Part-II is converted into one punishable under Section 323 of the Indian Penal Code. Their sentence is reduced to six months of simple imprisonment. CR.A/135/1995 8/8 JUDGMENT Direction for payment of fine remains unaltered. Appellants however, are given benefit of probation and shall not have to serve out the sentence, if they individually execute bond of good behaviour for a period of one year before the trial Court latest by 30.6.2008. In case, they breach the bond, they shall have to serve out the sentence. 14. Both the appeals are disposed of in above terms. (Akil Kureshi,J.) (raghu)