CR.A/73/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 73 of 1987 With CRIMINAL APPEAL No. 74 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= = 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 ? ========================================================= = STATE OF GUJARAT - Appellant Versus THAKARDA LAXMANJI TARSANGJI & 2 – Respondents ========================================================= Appearance : MR MAULIK NANAVATI ADDL PUBLIC PROSECUTOR for Appellant MR AV TRIVEDI for Respondents : 1 - 3. ========================================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/73/1987 2/7 JUDGMENT HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 23/07/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. These two Criminal Appeals have been preferred by the State of Gujarat against the common judgment and order dated 27.10.1986 passed by the Addl. Sessions Judge, Mehsana in Sessions Case No. 61 of 1985 and 45 of 1986. Criminal Appeal No. 73 of 1987 has been preferred under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence against judgment and order passed in Sessions Case No.61 of 1985 and Criminal Appeal No. 74 of 1987 has been preferred under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence against judgment and order passed in Sessions Case No.45 of 1986. 2. Briefly stated the case of the prosecution before the trial Court was that some quarrels had taken place between Baldevji Talaji (PW-3) and Bhimaji Karsanji (Accused No. 7), who were friends, over payment of bill of snacks, that the two had together some days prior to the date of incident. It is further the prosecution case that on the date of incident, complainant and CR.A/73/1987 3/7 JUDGMENT his father had gone to see garba in nearby village. At about mid-night while they were returning along with nephews, Baldevji and Kantiji, they were accosted by the accused party and assaulted. According to the prosecution, with a view to take avenge demand of money for snacks by Baldevji from Bhimaji (A-7), the accused persons formed an unlawful assembly and as a part of their common object, assaulted the complainant party. Accused No. 2 was armed with a dhariya and the other six accused persons were armed with sticks. Accused No. 2 was stated to have given a dhariya blow on the arm of Shankarji. Injuries were also inflicted on Baldevji Talatji. As a result of injuries caused in the attack, Shankarji died in the hospital. Accordingly, all the accused persons were charged for the offences punishable under Sections 147, 148, 149, 302, 323 of the Indian Penal Code. 3. The trail Judge, after appreciating the evidence, held that prosecution has not been able to prove that accused persons formed an unlawful assembly, the common object of which was to kill Shankarji Mankaji and to cause injuries to the complainant and witnesses Kantiji and Baldevji. The trial Judge has found that there is no evidence on record to show that the accused persons were aware that the complainant party had gone to see garba in the CR.A/73/1987 4/7 JUDGMENT nearby village and therefore, there could not have been any premeditation on their part to attack the complainant party at the garba function. The attack was not planned but happened on the spur of the moment. Therefore the trial Court acquitted the accused persons of the charges under Sections 147 and 148 of the Indian Penal Code. On the charge of murder, the trial Judge found that the medical evidence shows that the cause of death of Shankarji was shock and hemorrhage due to injuries of internal vital organs. Considering the testimony of Dr. Kashibhai Patel (PW-6) and other medical reports, including the weapon of offence and nature of injury, the trial Judge found that prosecution has not been able to prove that accused persons had the intention to kill Shankarji nor did they have knowledge that death in ordinary course could be caused by stick blows on the upper torse. Therefore, holding that the evidence on record was not sufficient to conclusively establish their guilt, the trial Judge acquitted the accused persons for the charges under Section 302 of IPC. However, relying on the testimony of complainant (PW-1), injured witness Baldevji Talaji (PW-3) and Kantiji Talaji (PW-4), the trial Court accepted the prosecution case that accused Nos. 1,2,4 and 7 caused injury to the deceased and other persons and accordingly convicted accused No. 1, 4 and 7 for the offence punishable under Section CR.A/73/1987 5/7 JUDGMENT 325 and convicted accused No. 2 for the offence punishable under Section 326 of IPC. 4. As regards the quantum of punishment, the trial Judge awarded sentences of one year for offence under Section 325 and fine of Rs.200/- for offence under Section 323 (in default of payment of fine SI for one month) to accused Nos. 1, 4 and 7 and awarded Sentence of 6 months RI and fine of Rs.200/- (in default of payment of fine SI for one month) to accused No. 2 for offence under Section 326. 5. We have heard Mr. Maulik Nanavati, APP for the State and have also gone through record of the trial Court. 6. It has been submitted by learned APP Mr. Nanavati that considering the number of blows inflicted by the accused persons on the body of the deceased, which caused fracture on the rib and rupturing of the spleen and damage to kidney and the fact that the doctor has opined such injuries to be grievous and having been inflicted on vital part of the body, it cannot be said that the accused persons did not have the knowledge that such injuries would in ordinary course of nature be sufficient to cause death. He has therefore, submitted that the trial Judge has erred in acquitting the accused CR.A/73/1987 6/7 JUDGMENT for the charge under Section 302 of IPC. In the alternative, Mr. Nanavati has submitted that the trial Court ought to have convicted the accused under Section 304 as indisputably death has been caused because of the injuries sustained by the deceased in the attack. 7. We are not impressed by the arguments of Mr. Nanavati. There is no evidence to show that the accused persons had premeditated the attack or had caused injuries with deadly weapons. The fight appears to have occurred spontaneously. Also, the injuries on the body are not found to be such as would have been sufficient in the ordinary course of nature to cause death. The accused could not have known that stick blows would result in rupturing of the spleen and thereby cause death of the accused. Therefore, we do not find any infirmity with the reasonings given by the trial Judge while acquitting the accused for the charge under Section 302 of IPC. 8. As regards the quantum of sentence, we do agree with the submission of Mr. Nanavati that the sentence of six months awarded by the trial Judge to accused No. 2 while convicting him for the offence under Section 326 is less. However, considering the fact that several years have elapsed since the date of incident and that the conviction has not been challenged by any of the accused, we do not deem it appropriate at this CR.A/73/1987 7/7 JUDGMENT point of time to interfere with the sentence awarded by the trial Judge. 9. Accordingly, both the appeals filed by the State deserve to be rejected and accordingly dismissed. Bail bonds stand cancelled. Record and proceedings be sent forthwith to the trial Court. [BHAGWATI PARASAD, J.] [S.R.BRAHMBHATT, J.] pallav