IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 120 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NABIKHAN HAMIRKHAN SEPOY Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 120 of 1997 MR MC BHATT for Appellant No. MR KB ANANDJIWALA for Appellant No. MR RC KODEKAR, APP for Respondent No. 1 MRS SHILPA J UNWALLA for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KSHITIJ R.VYAS and HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 06/05/2005 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE AKSHAY H.MEHTA) 1. The appellants have preferred this appeal to challenge the judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Banaskantha at Palanpur dated 3rd February, 1997 in Sessions Case No. 117 of 1993. The appellants have been convicted for offence made punishable under sections 302, 307 323, 427, 452, 435, 336, 143, 147 and 148 read with section 149 of the Indian Penal Code [for short 'IPC'] and also for offence under section 135 of the Bombay Police Act. All the appellants have been sentenced to suffer imprisonment for life and to pay fine of Rs.100/= each and in default RI for one year for offence under section 302 read with section 149 of the IPC. 1.1. Appellants no. 4, 8, 1 to 3 and 5 to 7 have been sentenced to suffer imprisonment for life for offence under section 307 read with section 149 of the IPC. Appellants no. 3, 5, 6, 7, 1, 2 and 4 and also 8 have been sentenced to suffer RI for two months for offence under section 323 read with section 149 of the IPC. 1.2. Appellants no. 1 to 8 have been sentenced to suffer RI for two months for offence under section 427 read with section 149 of the IPC. Appellants no. 1 to 8 have been sentenced to suffer RI for two years and to pay fine of Rs.100/- each, in default further RI for one month for offence under section 452 read with section 149 of the IPC. 1.3. Appellants no. 1 to 8 have been sentenced to suffer RI for two years and to pay fine of Rs.100/= each in default further RI for one month for offence under section 435 read with section 149 of the IPC. 1.4. Appellants no. 1 to 8 have been sentenced to suffer RI for one month for offence under section 143 read with section 149 of the IPC. 1.5. Appellants no. 1 to 8 have been sentenced to suffer RI for two months for offence under section 147 read with section 149 of the IPC. 1.6. Appellants no. 1 to 8 have been sentenced to suffer RI for one year for offence under section 148 read with section 149 of the IPC. 1.7. Appellants no. 1 to 8 have been sentenced to suffer RI for four months and to pay fine of Rs.100/= each in default further RI for one month for offence under section 135 of the Bombay Police Act. 1.8. All substantive sentences are ordered to run concurrently. 1.9. Original accused no. 9 has been acquitted of all the offences with which he was charged. 2. According to the prosecution, the incident took place on 16th May, 1993 at village Karnala in Taluka Vadgam of district Banaskantha. There was a civil litigation going on with regard to installation of door on the back side of the house of Patel Okhabhai Ganeshbhai, who resided in the locality known as Patel Vas. Appellant no. 2 and 5 had objection to this since their houses were situated on the back side of the house of Okhabhai Ganeshbhai. They, therefore, filed a civil suit for obtaining permanent injunction restraining Okhabhai Ganeshbhai from putting up the door. It appears that initially the temporary injunction was granted, but subsequently it was vacated. However, a compromise was arrived at between the parties in the appeal which was preferred to challenge the order vacating the injunction and in the compromise it was agreed by and between the parties that Okhabhai could put the door but he was not supposed to use it till the litigation was over. 2.1. According to the prosecution, in view of this compromise, Okhabhai decided to put up the door and on 16th May, 1993 he called the mason Ramjibhai to start the work. Ramjibhai started the work at about 10.00 a.m. However, he did not get labourers to help him and hence Ramjibhai Okhabhai, Meghajibhai Okhabhai, Kamrajbhai Okhabhai, Ratubhai Kanjibhai, Laxmanbhai Kanjibhai and Kanjibhai Ganeshbhai went to help him. The work was in progress; at that time the first informant went behind his house to answer the call of nature and he saw that some hot exchange of words was going on between the appellants and the mason Ramjibhai and others. He saw that the appellants were armed with weapons. He, therefore, went to them and asked the appellants not to create any trouble and also instructed the mason to stop the work. Accordingly, the appellants stopped the exchange of words and Ramjibhai also stopped the work of construction. It is the case of the prosecution that in the meanwhile, the appellant no. 2 pulled the rope which was tied to the frame of door to keep it erect and broke it. PW Virjibhai Okhabhai caught the hand of appellant no. 2 and asked him not to break the rope but soon thereafter appellant no. 1 dragged Ratubhai Kanjibhai, the deceased of the case, and took him to the back side of his house. Appellant no. 1 delivered a knife blow on the stomach region of Ratubhai. He, therefore, fell down on the ground. On learning about the assault on Ratubhai, immediately other Patels residing in the said locality rushed there. When Ratubhai was lying on the ground in injured condition, appellant no. 2 delivered a Dhariya blow on his head. Ratubhai started profusely bleeding. Appellant no. 3 caused injury with iron pipe to Kanjibhai Ganeshbhai. In the meanwhile appellant no. 4 delivered a blow with the handle of hand-pump on the back side of the head of PW Kamrajbhai Okhabhai and caused him serious injuries. It is further alleged by the prosecution that appellant no. 6 also assaulted Laxmanbhai Kanjibhai with iron pipe and caused him injury on the head. According to the prosecution, appellant no. 7 was having a hockey stick and he wielded it indiscriminately causing injuries to all, so did appellant no. 5. 2.2. It is the case of the prosecution that since Ratubhai had received serious injuries, he was brought to the house of Okhabhai. He was still in bleeding condition. It is further the case of the prosecution that the appellants thereafter entered the house of Okhabhai Ganeshbhai and went to his compound and from there they started pelting stones. After the incident was over, since Ratubhai Kanjibhai, Kamrajbhai Okhabhai, Laxmanbhai Kanjibhai, Virjibhai Okhabhai and Kanjibhai Ganeshbhai had received injuries, they were removed to Government hospital at Palanpur in the jeep car of Virjibhai Okhabhai. According to the prosecution, Ratubhai breathed his last on his way to the hospital. The first informant Moghajibhai Galbabhai got the injured persons admitted in the hospital and he returned to village Karnala. Ratubhai was declared dead by the doctors at the Civil Hospital. It is the case of the prosecution that after the injured persons were removed to the hospital at Palanpur, back in the village the appellants caused damage to the properties of the Patels. Subsequently the information with regard to the incident was given to the police at Vadgam Police Station, who registered the offence at C.R. No. 19 of 1993 for offences under sections 302, 307, 325, etc. of the IPC and commenced investigation. Appellant no. 1 Nabikhan also approached the police and lodged the FIR against some of the prosecution witnesses. It was registered at C.R. no. 20 of 1993 at Vadgam Police Station. It was for offences under sections 323, 337, 114 of the IPC and under section 135 of the Bombay Police Act. 2.3. On receipt of the complaint, the police commenced investigation and in the course of the same, arrested the appellants and produced them before the concerned Court, which forwarded them to the judicial custody. On completion of the investigation, the police submitted charge-sheet on 13th August, 1993 in the Court of the learned Chief Judicial Magistrate at Palanpur, who in turn committed the case to the Court of Sessions on 7th October, 1993 as offences under sections 302, 307, etc. are exclusively triable by the Court of Sessions. 2.4. At the trial, the learned Judge framed the charge against the appellants and original accused no. 9 Ismail Vali Muman for aforesaid offences on 20th June, 1995. The appellants pleaded not guilty and claimed to be tried. 2.5. The prosecution, to substantiate its case against the appellants, examined 21 witnesses and also produced documentary evidence. After recording of the evidence was over, further statements of the appellants and original accused no. 9 were recorded under the provisions of section 313 of the Code of Criminal Procedure. It appears that no specific defence was pleaded but it was of general denial. 2.6. At the end of the trial, the learned Judge came to the conclusion that the prosecution had been able to prove all the charges against the appellants beyond any reasonable doubt and hence, the learned Judge convicted them for different offences as stated above and imposed different sentences. The learned Judge, however, came to the conclusion that so far original accused no. 9 was concerned, the prosecution had failed to prove its case against him and, therefore, he was acquitted. The appellants have approached this Court to challenge the judgment and order of conviction and sentence passed against them. 3. We have heard Mr. KB Anandjiwala, learned advocate for the appellants and Mr. RC Kodekar, Ld. APP for the respondent - State. We have also permitted Mrs. Shilpa J Unwala, learned advocate for the original complainant to address us. Mr. Anandjiwala has submitted that the conviction of the appellants for offences under sections 302, 307, etc. read with section 149 of the IPC is erroneous. He has submitted that the prosecution has suppressed the true facts regarding the origin of the incident and, therefore, on that sole ground its case should fail. He has further submitted that looking to the facts of the case there was every possibility that the appellants were attacked first and they had exercised their right of private defence in causing injuries to the prosecution side. In the alternative he has submitted that it is a case of free fight where everybody is liable for his individual act and the conviction of the appellants with the aid of section 149 and section 34 of the IPC is erroneous. Lastly, he has submitted that except appellant no. 1 rest of the appellants were on bail pending trial and even after their conviction, pending final disposal of the appeal they have remained on bail and execution of their sentence has been suspended. In view of the same, it will not be desirable to send them behind bar after a lapse of 12 years. 3.1. As against that, Mr. Kodekar has supported the judgment. He has submitted that considering the facts and circumstances of the case, it is very clear that the appellants had made all the preparations to assault the prosecution side and on the day of incident they actually armed themselves with lethal weapons and attacked the prosecution witnesses and the deceased and caused them serious injuries. In his submission, the appellants have been rightly convicted for various offences with the aid of section 149 of the IPC. He has submitted that the appeal of the appellants deserves to be dismissed. 3.2. Mrs. Unwala, learned advocate for the complainant has submitted that the evidence on record does not show that it was the prosecution side which attacked first and, therefore, the appellants had a right of private defence. She has submitted that when Okhabhai Ganeshbhai was constructing the door in accordance with the terms of the compromise, there was no need for the appellants to go there armed with weapons and assault various persons. She has further submitted that the very fact that the appellants had received minor injuries shows that they themselves were aggressor and they have been rightly convicted by the trial Court for different offences. 4. With a view to reappreciate the evidence we have carefully gone through the record of the case. We have also carefully considered the submissions of the learned advocates. It is clear from the record that there was some dispute going on with regard to putting up of the rear door by the Patels between them and the appellants since long. There was civil litigation going on between the parties on account of it. It also appears that there was some heart burning on the side of the prosecution because of the objection raised by some of the appellants for grant of piece of land to the Patels by the panchayat. In this background of the hostility, the present incident took place. It appears that pursuant to the compromise that had been arrived at between the parties that Okhabhai Ganeshbhai had commenced the work of putting the door on the back side of his house and for that he had called mason Ramjibhai. He had started the work around 10.00 a.m. It is the case of the prosecution that since labourers were not available, certain persons namely, Kanjibhai Ganeshbhai, Ratubhai Kanjibhai, Laxmanbhai Kanjibhai, Virjibhai Okhabhai, etc. were helping the mason. When the appellants came there, the present incident thereafter took place. 4.1. Prosecution has examined PW 2 - Moghajibhai Galbabhai Patel at Exh. 31. He has stated in examination-in-chief that the incident took place on 16th May 1993 at about 10.0 to 10.30 a.m. He has stated about the litigation that was going on between the parties. On the day of incident he had gone in the chowk situated behind his house for urinating and at that time he saw that near the house of Okhabhai the appellants were having some altercation with the deceased and some of the members of the prosecution side. He, therefore, went there and asked the appellants to keep quiet and asked mason Ramjibhai to stop the work. They did so. He has further stated that there after appellant no. 2 pulled the rope which was tied to the door and broke it. He also threw the frame of the door on the ground. Immediately appellant no. 1 pulled the deceased Ratubhai and dragged him to some distance and thereafter he delivered a blow on his stomach with knife. As a result thereof, Ratubhai fell on the ground. Appellant no. 2 delivered a blow with Dhariya on the head of Ratubhai while he was lying on the ground. The witness has further stated that appellant no. 4 delivered a blow on the head of PW Kamrajbhai Okhabhai with handle of the hand-pump and appellant no. 1 delivered stick blows to Virjibhai Okhabhai on his stomach. He has also stated that appellant no. 6 was having pipe and he delivered a blow on the head of Laxmanbhai Kanjibhai and appellant no. 3 who was having a piece of iron pipe caused injuries to Kanjibhai. The witness has further stated that appellant no. 7 was having hockey in his hand and he wielded it at random causing injuries to all. Appellant no. 5 who was having iron rod in his hand also caused injuries to all by wielding it at random. The witness has further stated that he went near Ratubhai who was profusely bleeding and was unconscious. He was thereafter taken to the terrace of the house of Laljibhai Ganeshbhai. At that time the appellants started pelting stones. The witness has further stated that since Ratubhai, Kamrajbhai, Laxmanbhai and Virjibhai had sustained serious injuries, they were taken to the Government hospital at Palanpur. However, Ratubhai expired on his way to hospital. The witness has also stated that he went in the jeep car to Vadgam Police Station and informed the Police Inspector that there was likely to be more trouble at village Karnala and, therefore, he should immediately reach there and arrange for the Bandobast. He has also stated that when he went back to Karnala, he saw the appellants had also caused damage to the properties of the Patels. In the cross-examination by the defence he has stated that when he went to Vadgam he did not go for lodging FIR because he was in hurry. He has, ofcourse, stated that he realized that in such case the complaint should be given immediately but since he was in a haste, he did not give it. He has further stated that at the Vadgam Police Station he did not reveal the entire incident to the concerned Police Inspector Mr. Gorkha, but he only stated that there was a fight between Patels and Sepoys. He has also stated that when the Inspector asked him whether anybody was injured in the incident, he had informed him that Ratubhai had expired and Kamrajbhai and others had received injuries and Kamrajbhai's condition was serious and he was admitted in the Palanpur hospital. He has also stated in the cross-examination that when the Sepoys and Patels pelted stones at each other, he was there in the crowd. However, the witness has further stated that when the Sepoys pelted stones he was not there. He has further stated that when the incident was about to be over Daljibhai came there and Daljibhai, Ramjibhai Okhabhai and Laxmanbhai Kanjibhai started pelting pieces of bricks at the Sepoys. The crowd had gathered on the road near the house of appellant no. 2. He has also stated that at the time when the incident was going on, there were 8 appellants, 6 Patels and 2 others, namely Ramjibhai and Laxmanbhai and they were in the circle of 20 ft. He has also stated that when Ramjibhai Okhabhai and Laxmanbhai threw stones at the Sepoys, only thereafter Sepoys beat the Patels and Laxmanbhai . He has, however, immediately stated that when the aforesaid three persons pelted stones at the Sepoys, they did not retaliate. The witness has denied the suggestion made by the defence that initially a complaint was registered at Vadgam Police Station at C.R. No. 19 of 1993 against the appellants. But since it was not convenient to the Patels, it was entirely changed. From the evidence of this witness, it also appears that there was some dispute with regard to the proposed allotment of a piece of land to Kanjibhai Ganeshbhai. The witness has, however, showed his ignorance about such dispute. 4.2. PW 3 - Kamrajbhai Okhabhai Exh. 33 is the person who had received injuries. He has stated that on the day of incident the door was to be installed and at that time he, Kanjibhai Ganeshbhai, Ratubhai Kanjibhai, Laxmanbhai Kanjibhai, Virjibhai Okhabhai and Ramjibhai Okhabhai were present. For doing the masonry work one Ramjibhai was engaged. He has further stated that at that time the appellants arrived there with weapons. According to him, appellant no. 2 was having Dhariya, appellant no. 7 was having hockey, appellant no. 5 was having iron rod, appellant no. 8 was having stick and knife, appellant no. 4 was having handle of hand-pump, appellants no. 6 and 3 were having iron pipe and appellant no. 1 was having knife. He has stated that all the appellants came there and threatened to stop the work. Hence the masonry work was stopped. He has further stated that appellant no. 2 broke the rope which was tied with the frame of the door to keep it erect. In the meanwhile appellant no. 1 dragged deceased Ratubhai upto some distance and gave him a blow with knife on his chest. At that time appellant no. 4 gave a blow on his head with the handle of the hand-pump and appellant no. 8 gave blow on his stomach with knife. According to the witness, he fell down on the ground and thereafter he became unconscious. When he regained consciousness, he was lying in the hospital of Dr. Rupesh Mehta at Ahmedabad. He thereafter, learnt that Ratubhai Kanjibhai had expired and other injured persons viz. Laxmanbhai and Kanjibhai were admitted in the Civil Hospital at Palanpur. In the cross-examination by the defence, he has admitted that part of his police statement was recorded on the basis of the information he had received from others. He has further stated that when his dying declaration was recorded by the Magistrate, his brother Meghrajbhai was with him. He has further stated that the deceased Ratubhai was dragged upto a distance of about 8 to 10 ft. and at that time Ratubhai was resisting the dragging. He has further stated that when Ratubhai was assaulted, he did not try to intervene or save him because Ratubhai died almost instantaneously. He has stated that he had seen appellant no. 1 giving only one blow on the chest of the deceased. He has denied that before the Executive Magistrate he had stated that repeated blows were given by appellant no. 1 on the chest of Ratubhai. 4.3. Apart from these witnesses, the prosecution has also examined PW 5 -Becharbhai Shantabhai at Exh. 42, PW 6 - Laxmanbhai Kanjibhai at Exh. 43, PW 7 Meghrajbhai Parthibhai at Exh. 44, PW 14 - Kanjibhai Ganeshbhai at Exh. 94 and PW 15 - Ramjibhai Okhabhai at Exh. 96, who were witnesses to the incident. Their version is almost on the same line. Hence, their evidence is not reproduced in detail here. They, however, involve the appellants in the assault on the Patels. PW 5 Becharbhai Shantabhai has stated that appellant no. 1 gave knife blow on abdomen of the deceased. PW 6 Laxmanbhai Kanjibhai has stated that appellant no. 1 gave knife blow on the chest of the deceased. PW 7 Meghrajbhai Parthibhai has stated that appellant no. 1 gave knife blow on abdomen of the deceased. PW 14 Kanjibhai Ganeshbhai has stated that appellant no. 3 gave pipe blow on the left shoulder of the witness. PW 15 Ramjibhai Okhabhai has stated that appellant no. 1 gave knife blow on the chest of the deceased. PW 12 Virjibhai Okhabhai has also stated that appellant no. 1 gave knife blow on the chest of the deceased. 5. The aforesaid evidence of the prosecution witnesses, therefore shows that there was incident involving Sepoys on one hand and the Patels on the other. According to the prosecution, it was the Sepoys i.e. the appellants who were aggressors and they have caused serious injuries to the Patels. As a result of that one of them, namely Ratubhai expired. The medical evidence brought on record in the form of oral evidence of the concerned Medical Officers as well as the post mortem notes and the medical certificates clearly shows that there were serious injuries suffered by the members of the Patel community. The post mortem notes have been produced by Dr. Kishanlal Ramjibhai Solanki PW 4 Exh. 34. He has also examined Laxmanbhai Kanjibhai, Kamrajbhai Okhabhai, Virjibhai Okhabhai and Kanjibhai Ganeshbhai. He had performed the post mortem examination of the body of Ratubhai Kanjibhai. The post mortem notes are brought on record and they are at Exh. 40. So far the medical certificates