CR.A/2426/2005 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2426 of 2005 With CRIMINAL REVISION APPLICATION No. 349 of 2007 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 ? ========================================================= DAHYABHAI RAMSANGBHAI PADHIYAR & 4 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR DK DESAI for Appellant(s) : 1 - 5.MS DARSHANA TRIVEDI for Appellant(s) : 1 - 3, 5,MR KIRTIDEV R DAVE for Appellant(s) : 1 - 5.MR RAHUL K DAVE for Appellant(s) : 1 - 5. MS PUNANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/04/2008 CR.A/2426/2005 2/14 JUDGMENT ORAL JUDGMENT 1. Criminal Appeal No.2426 of 2005 is filed by the original accused in Sessions Case No.145 of 2004. By impugned judgment and order dated 30th September, 2005, learned Principal Sessions Judge, Bharuch in Sessions Case No. 145 of 2004 was pleased to convict original accused Nos. 2 and 3, present appellant Nos. 2 and 3 for offence punishable under Section 304 part-II of Indian Penal Code and sentenced them to R.I. for 7 years and fine of Rs.500/- each. Learned Judge was also pleased to convict all accused for offences punishable under Sections 143, 147, 148, 149, 323, 324 and 114 of IPC. Insofar as sentence is concerned, it was provided that the sentence as already undergone would cover the sentence required to be imposed for the aforesaid sections. 2. Criminal Revision Application No.349 of 2007 has been filed by the original complainant seeking interference in the impugned order passed by the learned trial Judge and for holding that original accused were liable to be convicted for offence punishable under Section 302 of IPC. CR.A/2426/2005 3/14 JUDGMENT 3. I have heard both the matters simultaneously and heard learned advocate Shri K.R.Dave for the appellants, original accused, learned advocate Mr.Suthar for Shri N.K.Majmudar for the petitioner in Criminal Revision Application as well as learned APP Ms.Punani for the State in both the cases. 4. As per charge Exh.2, it was alleged against accused that on 13th July, 2004, at about 9 O'Clock in the morning when the complainant, Sanjaykumar Mansinghbhai, was going for cattle grazing towards his field and when he was passing from the front of the house of the accused, he was stopped by Dahyabhai Ramsangbhai, accused No.1 and told not to use the passage. Thereafter, when the complainant was returning home, accused No.1 came with a handle of a thrasher, accused No.2, Abhesang was armed with Farsi, accused No.3, Raysang had a Dhariya, accused No.4, Dhulabhai also had a Dhariya and accused No.5, Dharmendra, had a stick. All the accused had beaten up the complainant and his father Mansinghbhai upon which Madhuben, mother of the complainant who intervened was also beaten up by the accused. Father CR.A/2426/2005 4/14 JUDGMENT of the complainant died due to the injuries. All accused were thus charged with offences punishable under Sections, 143, 147, 148, 149, 323, 324, 302 read with Section 114 of IPC. 5. Complainant, Sanjaykumar Mansinghbhai, PW-4, was examined at Exh.31. In his deposition, he stated inter-alia that on the date of the incident at about 9 O'Clock in the morning, he was going for grazing his bullocks. Accused No.1, Dahyabhai had stopped him on the road and instructed him not to use the road. He, later on, returned from his field. He found that his father had gone to the field. He therefore went again to the field and returned at about 2 O'Clock. At that time, accused were coming in a Tractor. All the accused got down from the Tractor and attacked them. They ran after his father and started beating him. The complainant shouted upon which his mother came out. He and his mother were also beaten up. Thereafter, Mahendrabhai Shivabhai and Khumansinh also came, upon which, the accused ran away. Accused were beating with Farsi, stick and handle of thrasher. He stated that Abhesang had given a blow to CR.A/2426/2005 5/14 JUDGMENT his father with a Farsi. 5.1 In the cross-examination, he admitted that there was a cross criminal case which was still pending. He, however, denied that he and others had attacked the accused. 6. Mother of the complainant, Madhuben Mansinghbhai, PW-5 was examined at Exh.33. She stated that on the date of the incident, her son was stopped by the accused while he was going for grazing the bullocks. Her son and her husband were returning from the field at about 2 O'Clock at which time, accused had come in a Tractor armed with weapons and started beating them. All the five accused started beating them. Sanjay also had received injuries. Dahyabhai had given a blow with the handle on her left eye. Abhesang had given blow with the handle of Farsi on hand, Dahyabhai had given a Dhariya blow on her wrist, Raysang had given a Dhariya blow on a right arm. Her husband had died on the spot. 6.1 In the cross-examination, she denied the CR.A/2426/2005 6/14 JUDGMENT suggestion that when she reached the spot, the accused had ran away. 7. Dr.Kamleshkumar Sing, PW-6, Exh.35 had carried out the postmortem of the body of the deceased-Mansinghbhai. He had found several injuries on his body which were described in his deposition as well as in the report as follows: “1. incised wound 3 in number on the occipital Region of head A-3 c.m. X 1 c.m. X seal dip B-5 c.m. X 1 c.m. X Brain dip C-3 c.m. X 1 c.m. X Brain dip Brain Matter comeing out above wound. (11) Bruises & in number 10 c.m. X 2 c.m. On Rt Bultok on middle. (iii) Bruises 2 in Number 10 c.m. X 2 c.m. On middle buttok (iv) Fracture on the occipital Region of skull above injury is possible by sharp cutting object. Injury No.2 and 3 are possible By hand and Blunt. Age of injury is about 12-24 hrs”. 7.1 He opined that injury on the head could be caused by a sharp cutting weapon. CR.A/2426/2005 7/14 JUDGMENT 8. Khumansang Bhikhubhai, PW-7 was examined at Exh.37. He had reached the spot upon hearing shouts. He stated that all the five accused had beaten Mansinghbhai. Abhesang had a Farsi in his hand, Mansinghbhai had died on the spot. Sanjaykumar and Madhuben were shifted to hospital. 9. Mahendra Shivabhai, PW-8 who was examined at Exh.38 was another person who had reached the spot, upon hearing the shouts. He also stated that accused were beating up Mansinghbhai, that Abhesang had Farsi in his hand and Mansinghbhai died on the spot. 10. Dr.Ramdev Doon, PW-9, Exh.40 had treated Sanjaykumar as well as Madhuben on 13th July, 2004. On the body of Sanjay, he had found swelling on the left hand joint and he had referred him for X-ray. Upon examination of Madhuben he found one injury of 3 c.m. X ½ c.m. bone deep which was only on the left eye brow. He found one CLW of 2 c.m. X 2.5 c.m. On the left elbow, he had found one abrasion on the right shoulder of 4 c.m. X 5 c.m. He also found scratch on the right shoulder and swelling on the left wrist. CR.A/2426/2005 8/14 JUDGMENT 11. Jashwantsinh Madhavsinhy, PW-12, Exh.52 was the Investigating Officer. 12. Primarily on the above evidence, the prosecution sought to prove the charges. 13. Insofar as homicidal death of Mansinghbhai is concerned, there is hardly any dispute. The death occurred as per medical evidence on account of injury received by him on his head. It may also be noted that the injuries described by the Dr.Kamleshkumar, PW-6, Exh.35 on the head of the deceased, were as a result of one single blow of the sharp cutting weapon. As noted earlier, learned Sessions Judge convicted accused Nos. 2 and 3 Abhesang and Raysang respectively for offence punishable under Section 304 part-II of IPC. Though, death occurred due to one single blow on head of deceased, as emerging from the medical evidence, the learned Judge convicted the accused Nos. 2 and 3 for offence punishable under Section 304 part-II, I do not find any reason for convicting both accused. It is true that accused CR.A/2426/2005 9/14 JUDGMENT No.2, Abhesang had a Farsi and accused No.3, Raysang was carrying on a Dhariya. However, it was necessary to decide which accused had given the fatal blow. From the available evidence on record, particularly, the deposition of the complainant, Sanjyakumar, PW-4, wherein he clearly stated that Abhesang had given a blow to his father and the medical evidence supporting such version, in my opinion, learned Judge committed no error in convicting Abhesang for offence under Section 304 part-II. However, I see no reason why accused No.3, Raysang should also have been convicted for the said offence. Though, generally, both Sanjaykumar and his mother Madhuben have stated that all the five accused were beating up deceased Mansinghbhai, in so far as specific role attributing the cause of death is concerned, it was Sanjaykumar who stated that Abhesang had given a fatal blow to his father. This is also corroborated by medical evidence. Since from the medical evidence, it emerges that one single blow of the sharp cutting weapon had caused fatal injuries on the head of the deceased, the said blow cannot be attributed to Raysang also. CR.A/2426/2005 10/14 JUDGMENT 14. At this stage, it would be noted that though all accused were charged with unlawful assembly with the common intention, there are certain basic infirmities in the prosecution regarding the accused having traveled in the Tractor armed with different weapons with the purpose of beating up the complainant and his father and mother. In that view of the matter, learned Sessions Judge also did not hold all accused responsible for the act of others. In the result, conviction and sentence of original accused No.3, Raysang for offence under Section 304 part-II cannot be sustained. 15. With respect to conviction and sentence of Abhesang for offence punishable under Section 304 part-II, I find that there was sufficient reliable evidence on record in the form of deposition of complaint, Sanjaykumar and Madhuben mother of the complainant. This was corroborated by medical evidence of Dr.Kamleshbhai PW-6, who had carried out postmortem of the body of the deceased-Mansinghbhai. 16. Insofar as conviction of all accused in CR.A/2426/2005 11/14 JUDGMENT Sections 147, 148, 149 read with Sections 323, 324 of IPC is concerned, I find that the theory of forming unlawful assembly to fulfill common intention has not been established from the evidence. All the accused were involved in agricultural works, they were traveling in a Tractor with agricultural equipments. This cannot be viewed as forming part of unlawful assembly. Exact location of scene of the incident also is under some doubt. It cannot be stated that there was prior meeting of mind and formation of unlawful assembly for fulfilling common intention. 17. However, all the accused had caused simple injuries by giving blows with stick, Farsi, Dhariya and handle of the thrasher. This is established by the accounts of complainant, his mother Madhuben as well as eye-witnesses Khumansang Bhikhubhai, PW-7 and Mahendra Shivabhai, PW-8. This also amply gets corroborated by presence of injuries found by the doctors on the body of the deceased, complainant Sanjaykumar as well as Madhuben. Conviction and sentence of the accused under Section 323 and 324 therefore, cannot be disturbed. It may, however, be CR.A/2426/2005 12/14 JUDGMENT noted that for these offences, the learned Judge has imposed punishment only to the extent already undergone. 18. Insofar as, Criminal Revision Application is concerned, I see no possibility of interference. Deceased - Mansinghbhai had received only one fatal blow on his head by Farsi by accused No.2, Abhesang. Other accused had given simple injuries on the body of the deceased as well as complainant- Sanjaykumar and his mother Madhuben. In absence of common intention or proof of forming unlawful assembly, other accused cannot be convicted for the act of Abhesang. 19. So far as Abhesang is concerned, the learned Judge committed no error in not convicting him under Section 302 of IPC but Section 304 part-II. It is not in dispute that there was cross criminal case and though the complainant, Sanjaykumar, denied that they have caused injuries on the accused, he admitted that criminal case against them was pending. Thus, Abhesang in the heat of the moment having given one CR.A/2426/2005 13/14 JUDGMENT blow of Farsi, of course, on the vital part of the deceased, was rightly convicted for offence under Section 304 part-II for causing bodily injuries which are likely in ordinary course of nature to cause death. Jurisdiction of this Court to interfere in Criminal Revision Application against the judgment of the trial Court being extremely narrow and otherwise also when I come to the conclusion that judgment of the learned Judge in this regard, does not suffer from any infirmity, I see no reason to interfere in criminal revision application. 20. In the result, both the proceedings are disposed of in following terms: 1. Criminal Revision Application No.349 of 2007 is dismissed. 2. Criminal Appeal No.2426 of 2005 (i)Conviction and Sentence of accused No.2, Abhesang, under Section 304 part-II, under sections 323 and 324 and sentence imposed there under is upheld. (ii) Conviction and sentence of accused No.3, Raisang, under section 304 part-II is set aside. (iii) Conviction and sentence of all accused CR.A/2426/2005 14/14 JUDGMENT under Sections 323 and 324 of IPC is upheld. (iv) Bail bond of Raisang stands cancelled. 3. Appeal is disposed of accordingly. (AKIL KURESHI, J.) ashish//