CR.A/527/1986 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 527 of 1986 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 ? ========================================================= KATHI BHARATBHAI JIVABHAI & 5 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS C.M. SHAH FOR MR R VIJAY H PATEL for Appellant(s) : 1 - 6. MR HANSA PUNANI, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/04/2008 ORAL JUDGMENT Appellant Nos.1 to 3 were original accused Nos.1 to 3 in Sessions Case No.86/85. Appellant Nos.4 to 6 were original accused Nos.5 to 7 in the same case. CR.A/527/1986 2/13 JUDGMENT 2. As per charge Ex.3, it was alleged, inter alia, that on 11th March 1985, at about 9 O' clock in the morning near the house of the complainant at Nana Bhadla village of Taluka Botad, District Bhavnagar all the accused along with original accused No.4 Kathi Mokabhai had formed an unlawful assembly and attacked the complainant and other persons with deadly weapons such as dharia, sticks, axe, guns etc. and thereby committed offence punishable under sections 147, 148, 307, 324 and 323 read with section 149 of the Indian Penal Code. They were also charged with breach of the provisions contained in the Arms Act. 3. By the impugned judgment and order dated 24th March 1986 passed by the learned Additional Sessions Judge, Bhavnagar, the present appellants were convicted for offence punishable under section 147, 148 as also under section 324 read with section 149 of the Indian Penal Code. Original accused No.4 was acquitted of all the charges. All the appellants were sentenced to R.I. for one month for offence under section 147 and for two months for offence under section 148 of the Indian Penal Code. For offence under section 324 read with section 149 of the Indian Penal Code, accused Nos.1 to 3, 5 and 6 were sentenced to R.I. for one year and for the same offence, original accused No.7 was sentenced to RI for six months. In addition to the said substantive sentence, fine was also imposed on all accused. CR.A/527/1986 3/13 JUDGMENT 4. Complainant Jivabhai, PW-2 was examined at Ex.17. In his deposition before the Court, he stated that on a day before the incident, his son's marriage was performed at village Limboda. In the evening after marriage was over, he and other members of the family had returned to village Nana Bhadla in a tractor. The tractor had ferried twice. The tractor was driven by Patha Jaga. At the first time when the tractor reached Nana Bhadla village, bullet motor-cycle of accused No.1 was lying near the house of Patha Deva, accused No.6. The driver had, therefore, requested accused No.1 to move the motor- cycle and as a result of which there was verbal quarrel between the two. The driver had informed him about such quarrel. Second time when the tractor had reached Nana Bhadla village, accused Nos.1 and 6 had stopped them in the outskirts of the village and started giving abuses. On the next day, there was a dayara at his place and people had gathered. At about 9 O' clock in the morning, people had gathered. At that time, his relative Bhima Daya had gone outside the house to give tip to the drummer. At that time, the accused had come on three motor- cycles. Accused No.7 had a gun with him. One Lakhubhai had a gun with him. Accused No.1, Bharat had dhariya, accused No.2, Manu had a stick, accused No.6, Patha had an axe, accused No.3 Mashru Moti had a stick and accused No.4 Mokarbhai had a stick with him, accused No.5 Samat had an axe. When Bima was told to run away, he refused and then CR.A/527/1986 4/13 JUDGMENT there was a quarrel. They there was a gun fire. He, therefore, ran towards the place. After him, Jugabhai, Rambhai and Popatbhai followed. Accused No.1 tried to give a dhariya blow to Bima. He, however, avoided the blow upon which accused No.6, Patha Deva had given an axe blow on Bima hurting him on the head. Accused No.2 gave a stick blow to Jugabhai on the head. Another blow was given by Patha Deva to Rambhai. People from dayara, therefore, came out and attacked the accused. They, therefore, ran away from the place leaving the motor-cycle and one gun. One of them,however, was lying there on the spot. In the cross-examination, he admitted that there is a cross case being Sessions Case No.85/85 against him as well as Rambhai Hira, Popat Hira, Bhima Daya, etc. He denied that he and others had surrounded the accused and beaten them up. He also denied that they were waiting to the accused to beat them up. 5. PW-3, Rambhai Hirabhai was examined at Ex.19. He stated that on the previous day of the incident, there was a quarrel about the parking of the motor- cycle and accused No.1 and 6 had threatened and used foul language. On the date of the incident some 45 to 50 people had gathered at the house of the complainant for dayara. Bima Daya had gone out of the house to give tip to the drummer and the accused had come on three motor-cycles and picked up quarrel with Bima Daya. Accused No.1 had given CR.A/527/1986 5/13 JUDGMENT dhariya blow which Bima had tucked. Accused No.6 thereupon gave an axe blow on the head. Accused No.2 gave stick blow to Manu Jiva. Accused No.6 gave an axe blow on the hand of the witness. In the cross-examination, he denied that on account of the incident of the previous day, he and others were waiting to beat up accused No.1. He admitted that he is an accused in Sessions Case No.85/85. 6. PW-4, Popatbhai Hirabhai was examined at Ex.20. He also gave somewhat similar account of the incident. He denied that the story of dayara is a got up one and the entire case is got up on account of involvement in the murder case. 7. PW-7, Juga Kanji, Ex.42 also gave similar account. He claimed to be present in the dayara and upon hearing shouts, he came out. 8. PW-8, Pathabhai Jagabhai was the tractor driver. He was examined at Ex.43. He stated that after dropping 25 to 30 people in his tractor at Nana Bhadla, when he was going towards Limboda, motor- cycle of Bharat, accused No.1, was lying. Accused No.1, Bharat told him to turn his tractor. Since the road was too narrow, he could not do so, upon which the accused had started using foul language. He thereafter gone to Limboda and once again when he was returning, Bharatbhat had blocked his way then he had CR.A/527/1986 6/13 JUDGMENT taken the tractor on the road and carried on. On the next day when he had gone to his field, his brother had come there and he was summoned to the place of Purandas Maharaj where the accused was present and there was some sort of compromise between the two sides. 9. Purandas Lakhiram (Maharaj), PW-9 was examined at Ex.45. He turned hostile. However, he did say that accused No.1 had come to his house with another 5 to 6 people and compromise had taken pace with Patha Jaga. 10. Harjibhai Sukhabhai, PW-18, Ex.60 was the Investigating Officer. He had given the detailed account of the manner in which the investigation was carried out. He also produced injury certificates and the deposition of the doctor regarding injuries sustained by the accused which was part of the cross Sessions Case. 11. It may be noted that the weapons used, such as, dharia, sticks, axe, etc. were discovered at the instance of the accused. However, the panch witness to such discovery pannchnama turned hostile except in case of PW-12, Devji Dhusa, Ex.49, who was the panch witness in respect of recovery of axe from accused No.6. 12. Dr.Vasantkumari, PW-5, Ex.32 had treated four injured witnesses at Sonawala hospital at Botad CR.A/527/1986 7/13 JUDGMENT on 11th March 1985. On Rambhai Hirabhai, she had found a fracture on left radius portion, abrasion 2 x 1 c.m. on left hand and abrasion of 6 x 4 c.m. on left knee. On Popat Hirabhai, she had found lacerated wound of 10 x 4 c.m. on right hand. Fracture on ulna on the right hand and on the right shoulder, she noticed scratch wound of 10 c.m. long and on the right hand, she found lacerated wound of 2 cm x 1 cm. On Bima Daya, on the left parietal region, she found an incise wound of 2 cm x 1 cm skin deep. On Juga Kanji, she found incise wound on right frontal region of 2 cm x 1 cm, incise wound on parietal region of 2 cm x 1 cm and incise wound on right parietal region of 3 cm x 1 cm skin deep. 13. Dr.Kantibhai Nandolia was the Medical Officer at Sir T.Hospital, Bhavnagar. He was examined as PW-1, Ex.14. He had treated Popatbhai Hirabhai and noticed that a stitched wound on the back portion of right hand. He also found on the right forearm a suspected fracture. 14. This in the nutshell is the evidence on record. 15. Before assessing the said evidence, it may be CR.A/527/1986 8/13 JUDGMENT that that all accused had given further statements under section 313 of the Code of Criminal Procedure. Since all the statements are similar in nature, if one peruses the statement of Bharat Jiva, accused No.1, it is stated, inter alia, that on the previous day of the incident, when he and Patha Deva (accused No.6) was sitting at the house of Patha Deva, one child came and told that his motor-cycle has been knocked down. When he and Patha Deva came there, they found that a tractor being driven by Patha Jaga had knocked down his motor-cycle. When asked about it, the driver got excited and started abusing. On the next day, he, Patha Deva, Mashru Moti, Manubhia, Samatbhai, Lakhubhai and Lagubhai had gone to drop Patha Deva at his house. In doing so, they had passed by the house of the complainant. Upon hearing the sound of the motor-vehicle, people came out of the house and surrounded them and attacked them with deadly weapons such as, dharia, axe, knife, etc. and caused injuries to Lakhubhai who died and to two other persons who had to be shifted to hospital. It is stated that they were not carrying any weapon except Laghubhai who had a licensed gun. They had not caused any injury to anyone and if injuries are sustained by anyone,it must be by their own weapons. 16. From the evidence on record as well as the statements of the accused under section 313 of the Cr.P.C., it clearly emerges that the entire incident was a sequel to the parking of the motor-cycle of accused No.1 which hindered the tractor carrying CR.A/527/1986 9/13 JUDGMENT family members of the complainant on the previous day. Concededly there was a quarrel between the driver of the tractor and accused Nos.1 &6. 17. Presence of the accused persons at the house of the complainant also is admitted. Quite apart from the overwhelming evidence to this effect, the accused in their statement under section 313 have clearly stated that they were going to drop accused No.6 who resides near the house of the complainant on three different motor-cycles when reached near the house of the complainant, the incident took place. The fact that the accused were carrying deadly weapons has also been established on record. Though denied in the statement under section 313 of the Cr.P.C. that they were carrying weapons, the accused did admit that Lagubhai had a licenced gun with him. Additionally, weapons such as, sticks, dharia and axe were discovered by the police at the instance of the accused. It is true that most of the panchas of such discovery panchnama had turned hostile, however, the panchnama was sought to be proved through the evidence of the I.O. and as noted earlier, PW-12, Devji Dhusa, Ex.49 supported the prosecution and described the manner in which axe was discovered at the instance of accused No.6. Additionally, one also finds that as many as four persons related to the complainant received various injuries which could have been caused by blunt and hard substance as well as by sharp-cutting weapons. From the evidence on record, thus, it is CR.A/527/1986 10/13 JUDGMENT unequivocally established that after the quarrel on the previous day regarding parking of the motor-cycle of accused No.1, the next day in the morning hours, accused Nos.1 & 6 along with other accused had gone near the house of the complainant on three motor- cycles armed with weapons such as, gun, axe, sticks, dharia. The explanation that they had gone to drop accused No.6 and were intercepted by the complainant and his family members and suddenly attacked cannot be accepted. This was not the normal route of accused No.1 or other accused persons. Their move was not therefore not known to the complainant and other family members. When they were travelling in the motor-cycles, it is difficult to accept that all of a sudden out of nowhere, the complainant and other members of his family gathered there with deadly weapons and attacked them suddenly. 18. From the eye-witness accounts, which though suffer from minor internal contradictions and otherwise found to be reliable, it has been established that accused traveled on three different motor-cycles and came to the house of the complainant in the morning hours armed with deadly weapons to take revenge for the quarrel of the previous day regarding parking of the motor-cycle. Under the circumstances, the learned Judge was justified in convicting accused under section 147 and 148 of the Indian Penal Code as well as for causing simple injuries, though through deadly weapons punishable under section 324 read with section 149 of the Indian CR.A/527/1986 11/13 JUDGMENT Penal Code. 19. It is true that the prosecution did not fully explain the injuries on the accused. In fact one of them lost his life. Two other persons received serious injuries. Witnesses, however, stated that there was a dayaro at the house of the complainant following the marriage of his son and as many as 40 to 50 people had gathered there. Upon seeing the fight, they attacked the accused forcing them to abandon their motor-cycles and run for life. Considering the evidence on record and the explanation rendered for the injuries caused to the accused, I do not find that the learned Judge committed any error in convicting the appellants for the above mentioned offences. 20. It may be noted that the incident is of the year 1985. Nearly 20 years have passed since then. Maximum punishment imposed is of one year of R.I. From the record, it can be seen that except accused Nos.1 & 6 (present appellant Nos.1 & 5), no other accused have criminal antecedents. The appellants were on bail during trial as well as pending appeal. No allegations of misuse of their liberty is made. These persons would at least deserve to be granted probation. 21. Insofar as original accused No.1 and 6 (present appellant Nos.1 & 5) are concerned,it has come on record that they were involved in other criminal CR.A/527/1986 12/13 JUDGMENT cases in the past. At Ex.61 and 62 are the criminal complaints which were pending against them at the time of trial. They cannot, therefore be granted probation. 22. In the result, the appeal is disposed of in following terms: (i)conviction and sentence of all the appellants is confirmed. (ii)Insofar as appellant Nos.2, 3, 4 and 6 are concerned, they are given the benefit of probation. They shall, therefore, not have to serve out the sentence. They shall execute bond of good behaviour for a period of one year which shall be done by 30th June 2008. In case of breach of bond, they shall be liable to serve the sentence. Fine, if paid by them, shall be refunded to them. (iii)Insofar as appellant Nos. 1 and 5 (original accused No.1 & 6) are concerned, their conviction and sentence is not only confirmed but they are also not given the benefit of probation. (iv)Bail bonds of all accused are cancelled. Appellant Nos.1 & 5 shall, however, have time upto 30th June 2008 to surrender. With the above directions, the appeal is disposed of. CR.A/527/1986 13/13 JUDGMENT (Akil Kureshi, J.) (vjn)