CR.A/60520/2004 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 605 of 2004 With CRIMINAL APPEAL No. 2055 of 2005 To CRIMINAL APPEAL No. 2056 of 2005 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 ? ====================================== GIRASIYA SUKHDEVSINH DEVUBHA & OTHERS Versus STATE OF GUJARAT ====================================== Appearance : MR HARSHIT S TOLIA for the Appellants PUBLIC PROSECUTOR for Opponent(s) : 1, MR KB ANANDJIWALA for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/60520/2004 2/9 JUDGMENT HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 23/12/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present Criminal Appeal No.605 of 2004 is filed against the judgment and order dated 16th April 2004 passed by the learned Additional Sessions Judge, Fast Track Court, Surendranagar at Dhrangadhra in Sessions Case No.116 of 1999 whereas Criminal Appeal No.2055 of 2005 was filed by the State against the acquittal and Criminal Appeal No.2056 of 2005 was filed by the State for enhancement of sentence. Briefly stated, the facts of the prosecution case are that the incident in question took place on 16th May 1997 at about 11.15 AM near the village gate of Nava Devaliya. The accused persons are the residents of village Juna Devaliya. In between two villages there is a small river and people of both the village have their normal visits to each villages. On the date of the incident i.e. on 16.5.1997 at about 9 AM some minor quarrel took place in which motorcycle of one Patel Ishwarlal Ratilal who is the complainant in this case dashed with Harubha Patubha. At that time, Harubha told Ishwar Ratilal to drive his motorcycle properly. Some verbal altercation took place at that time and therefore Harubha slapped Ishwar Ratilal. Thereafter, Ishwar Ratilal went to his village. Further, it is the prosecution case that Ishar Ratilal informed his family members regarding this incident. Further it is the case of prosecution that some persons of Patel community came at village ND on one marriage ceremony. Further, according to the prosecution case the complainant – Ishwar was asked by his family members and relatives as to what has happened. Thereafter the complainant informed the CR.A/60520/2004 3/9 JUDGMENT incident to them. Further, according to the prosecution case at that time the present appellants and co-accused persons all of them were armed with deadly weapons came at the place where the complainant and his family members were standing. according to the prosecution case there were in all 15 persons. Appellant No.1 – Sukhdevbhai Devubha was armed with sword, co-accused Tejubha Ganubha was armed with dharia, accused - Ramubha Merubha. Sukhdevsinh Dhirubha, Ramubha Chanubha, Palubha Jitubha, Jivansinh Jitubha, Meghubha Govindsinh and Bharatsinh Meghubha were armed with sticks while Shaktisinh Jabbha – appellant No.2 was armed with spear. Devubha Falji was armed with Dharia. Dilipsinh Chhanubha was armed with sword. Ganubha Vrajrajsinh, Anopsinh Jorubha and Mahipatsinh Prabhatsinh were armed with dharias in their hands. Further, according to the prosecution case the appellants as well as co-accused started offence with respective weapons which were in the respective hands on the persons of Patel Ishwarbhai Ratilal, Mavjibhai Narsibhai, Karsanbhai Shivabhai, Ghanshyam Narsibhai and Ratilal Narshibhai Patel. During the course of investigation, 13 persons were arrested. During the pendency of the trial, Devubha Falji died and therefore the case is ordered to be abated against him. Anopsinh Jorubha who sustained fatal injuries died in the incident. All the accused persons were charged with the offence punishable under Sections 143, 147, 148, 149, 326, 325, 324 of IPC as well as for the offence u/s 135 of the Bombay Police Act. Complainant – Ishwarbhai Ratilal filed the complaint at Halvad Police Station on the same day at 4.35 PM. As stated above, offence was registered against 15 persons. CR.A/60520/2004 4/9 JUDGMENT During the trial, in all 19 witnesses including four injured persons have been examined by the prosecution. At the conclusion of the trial, the learned trial Judge was pleased to hold all the appellants to be guilty of the offence punishable under Sections 143, 147, 148, 325 read with Section 149 of IPC and accordingly all of them are convicted and sentenced to suffer RI for a period of five years and to pay a fine of Rs.2,000 each in default, they are directed to undergo RI for a period of 3 months. Further, the learned trial Judge was pleased to hold all the appellants to be guilty for the offence punishable under Sections 143, 147, 148, 324 read with Section 149 of IPC and each of them are convicted and sentenced to suffer RI for a period of one year and to pay a fine of Rs.1000 each, in default each of them is directed to undergo RI for a period of one month. No separate sentence is imposed in respect of offence punishable u/s 325 of IPC. The injured persons of both the sides were removed at CHL Community Centre, Halwad and thereafter some of them were transferred to Govt Hospital at Morbi, Rajkot District. On the strength of the cross complaint filed by appellant No.1 – Sukhdevsinh the offence was registered against 13 members of Patel community and Sessions Case was registered as Sessions Case No.115 of 1995 in which 13 persons were arrested. One Patel Mavjibhai Narshibhai died during the pendency of trial and therefore the case was ordered to be abated against him. All the 5 injured persons of Patel community, namely, Mavjibhai Narsibhai, Karsanbhai Shivabhai, Ghanshyambhai Narsibhai, Ratilal Narsibhai and Ishwarbhai Ratilal took primary treatment at Halwad and therefore Mavjibhai Narsibhai, Karsanbhai Shivabhai and Ghanshayambhai took further treatment at General Hospital, Morbi. In CR.A/60520/2004 5/9 JUDGMENT this incident, Anopsinh Jorubha who was injured succumbed to the injuries. Therefore, members of Patel community were arrested for the offence punishable under Section 302, 325, 326, 143, 147, 148, 149, etc of IPC. At the conclusion of trial, all the 12 persons were found guilty by the learned Trial Judge and accordingly they are inflicted sentence to suffer RI for life and other sentences also were imposed. The following seven persons were acquitted by the learned trial Judge:- (1) Girasiya Tejubha Ganubha (2) Girasiya Ramubha Chanubha (3) Girasiya Meghubha Govindsinh (4) Girasiya Bharatsinh Meghubha (5) Girasiya Ganubha Vrajrajsinh (6) Girasiya Anopsinh @ Polubha Jitubha (7) Girasiya Juvansinh Jitubha The injured were taken to Halwad dispensary and Dr Malampara gave the information to the police, which was received by Jafferbhai Mohdbhai, Head Constable of Halwad Police Station at 12.20 PM. On the side of the accused - appellants five persons also sustained injuries. Parmar Chhanubha Vrajrajsinh, Anopsinh Jorubha, Parmar Devubha Faljibha and Sukhdevsinh Devubha sustained serious injuries. It is in the evidence that PI Chudasama who was present at the PS on learning about the incident, straightway went to the village, took the visit of scene of offence and contacted the witnesses. After taking over the charge of the investigation, he recorded their statements. It is pertinent to note that in this case, five persons on both the sides i.e. in all 10 persons have sustained injuries on their persons. One CR.A/60520/2004 6/9 JUDGMENT Anopsinh Jorubha, on the side of the appellants, succumbed to the injuries. Witness Mavjibhaii Narsibhai sustained incised wound above the forehead 2 cm x 2 cm x 1-1/2 cm deep up to bone. He also sustained injury on dorsal of left foot. He also sustained swelling with pain above left wrist joint and linear bruises on left parietal region. He was referred to orthopaedic surgeon. Injured witness – Karsan Shivabhai suffered swelling on the right side index, middle, little and ring finger. He sustained fracture of little phalanx of index, middle and ring finger of right hand. He also sustained incised wound on the right thumb and also CLW below left knee joint along with linear bruises. He was also referred to Orthopaedic Surgeon. Injured witness – Ghanshyam suffered CLW on head and abrasion at the root of left index finger with swelling. Injured witness - Ratilal Narsibhai sustained bruises on the top of head with abrasion. Injured witness Ishwarlal Ratilal Patel sustained nail marks on neck and on left maxillary region. He also sustained swelling on the right eye. Witnesses Mavjibhai Narshibhai, Karshanbhai Shivabhai and Ghanshyambhai Narshibhai were referred to General Hospital at Mrobi. According to orthopedic opinion, Karsanbhai Shivabhai Patel sustained fracture of middle phalanx of index, ring, middle and little fingers. Except this witness, nobody sustained any fracture or serious injuries. On the side of the accused, four persons also sustained injuries. Parmar Anopsinh died at the scene of offence. He sustained fracture of CR.A/60520/2004 7/9 JUDGMENT skull while Parmar Chhanubha suffered fracture and other incised wounds. Parmar Devubha sustained fracture of left radius and ulna while Sukhdevsinh Devubha sustained CLW one forehead and left elbow and other parts of body. In short, five persons sustained injuries/serious injuries on the side of the accused. Learned Additional Public Prosecutor, Mr Maulik Nanavati submitted that looking to the facts, evidence and circumstances of the case, more particularly, on both the sides five persons have sustained injuries, it is difficult to come out with a positive as to which party was aggressor. In all probability it is a case of free fight and therefore each person who has taken part in assault can be held to be responsible for the part played by him. He also submitted that specific overt act has been attributed to each of the accused persons and evidence also is getting corroboration from medical evidence so far as the injuries sustained by injured persons are concerned. Therefore, offence is made out against each of the accused persons. We have gone through the evidence of doctors and injured persons. We have considered the arguments advanced by both the parties. It is a fact that the police statements of most of the witnesses have been recorded after a lapse of 7-10 days. Looking to the fact, evidence and circumstances of the case it is not clear as to which party is the aggressor has not been established by the prosecution beyond reasonable doubt. In fact, there are injured on both sides and five persons sustained injuries. In all probability, it must be a case of free fight. In case of free fight as the incident occurred all of a sudden application for the offence under sections 34/149 of IPC could not be CR.A/60520/2004 8/9 JUDGMENT attracted. Each assailant would be held responsible for the offence committed by him and not for the offence committed by others with the aid of Section 34/149 of IPC. Considering the evidence, it becomes clear that the appellant – Sukhdevsingh Dhirubha was armed with sword, Shaktisinh was armed with spear and Mahipatsinh was armed with dharia. So far as the case of the prosecution, specific overt act is not attributed, looking to the medical evidence and the manner in which the incident had occurred it becomes clear that at the best it can be said that they have committed offence u/s 323/324 of IPC and not beyond that. Looking to the medical evidence, the conviction and sentence on them by the trial court for the offence punishable u/s 323, 147, 148, 149, etc of IPC cannot be sustained. Moreover, prosecution has failed to establish that injured witness – Karsanbhai Shivabhai sustained fracture injuries. Neither x- ray plate is produced nor x-ray technician has been examined nor it is in the evidence of the Medical Officer that x-ray was taken in his presence. In all these circumstances, all the appellants deserve to be convicted u/s 327 of IPC more particularly when the incident took place in the year 1997 and looking to the manner in which the incident had happened and looking to the age of the appellants their sentence is reduced to the period already undergone. Therefore, Criminal Appeal No.605 of 2004 is partly allowed. The order of conviction and sentence as recorded by the learned trial judge for the offence u/s 143, 147, 148, 149 and 325 of IPC and u/s 143, 147, 148, 149 and 324 of IPC is set aside and the appellants are now convicted under Section 323 of IPC. The period of sentence already undergone by each of the accused is considered sufficient to meet the ends of justice. Fine imposed for the offence punishable u/s 143, 147, 148, 325 CR.A/60520/2004 9/9 JUDGMENT and 149 of IPC and u/s 143, 147, 148, 324 and 149 of IPC is set aside and if paid the same be refunded. The appellants are on bail. Their bail bonds shall stand cancelled. Criminal Appeal No.2055 of 2005 against the acquittal and Criminal Appeal No.2056 of 2005 for enhancement of sentence filed by the State are ordered to be dismissed. (Bhagwati Prasad, J.) (Bankim N. Mehta J.) *mohd