CR.A/174/1999 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 174 of 1999 With CRIMINAL APPEAL No. 190 of 1999 With CRIMINAL REVISION APPLICATION No. 176 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE KS JHAVERI : Sd/- ======================================================= 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 ? ======================================================= THAKORE GABAJI REVAJI - Appellant(s) Versus STATE OF GUJARAT & 3 - Opponent(s) ======================================================= Appearance : MS SNEHA A JOSHI for Appellant(s) : 1 in Cr.A.No.174/1999, MR MEHUL SHARAD SHAH for Appellant(s) : 1 in Cr.A.No.190/1999, MR PK JANI for respondent in Cr.R.A.No.176/1999, MR HL JANI APP for Opponent(s) in all matters, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI CR.A/174/1999 2/22 JUDGMENT Date : 27/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1.0 Criminal Appeal No.174 of 1999 under Sec.374 of the Code of Criminal Procedure ('the Code' for short) has been filed by the appellant- original accused No.1–Thakor Gabaji Revaji, who has been convicted to suffer R.I. for life and to pay a fine of Rs.5,000/-, in default, to suffer S.I. for 3 months for the offence punishable under Section 302 of the Indian Penal Code and also convicted to pay fine of Rs.500/-, in default, to suffer S.I. for 1 month for the offence punishable under Section 323 of the Indian Penal Code vide judgment and order dated 30th January, 1999 passed by the Learned Additional Sessions Judge, Mehsana in Sessions Case No.22 of 1999. The appellant-accused was acquitted for the offence under Sections 147, 148, 149, 324, 325 and 307 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Whereas the accused nos.2, 4, and 6 were convicted for the offence under Section 323 of the Indian Penal Code. However, the accused no.1, 3, 5, 7 and 8 were convicted of the charges leveled against them. 1.1 Criminal Appeal No.190 of 1999 under Sec.374 CR.A/174/1999 3/22 JUDGMENT of the Code has been filed by the appellant- original accused No.1-Keshaji Gulabji Thakore, who has been convicted to suffer R.I. for 1 year and to pay a fine of Rs.1,000/-, in default, to suffer S.I. for 1 month for the offence punishable under Section 324 of the Indian Penal Code vide judgment and order dated 30th January, 1999 passed by the Learned Additional Sessions Judge, Mehsana in Sessions Case No.32 of 1997. 1.2 Criminal Revision Application No.176 of 1999 has been preferred by original complainant challenging the judgment and order dated 30th January, 1999 passed by the Learned Additional Sessions Judge, Mehsana in Sessions Case No.32 of 1997 qua acquitting original accused nos.2 to 7 of the charges leveled against them. 2.0 In a nutshell, the prosecution case as unfloded during trial is that the complainant viz., Keshaji of I-C.R.No.371/1996 disclosed the commission of offence before Mehsana City Police Station alleging inter alia that on 25.10.1996 at about 8 p.m., when he was at his residence, the accused persons armed with deadly weapons like sword, stick, dharia, dhoko etc. came and told the complainant that as to why they are not making payment of CR.A/174/1999 4/22 JUDGMENT cement bag and, thereafter, altercation took place. After forming an unlawful assembly, the accused started shouting 'maro-maro' and, thereafter, the accused no.1, who was having sword in his hand, gave sword blow on the head of the complainant and accused no.2, who was having stick in his hand, gave stick blow on right hand of the complainant. Hence, the mother of the complainant viz., Divaben tried to intervene, accused no.1 gave two sword blows on the head and one blow on the hand of the mother of the complainant and the accused no.3 gave stick blow on the head of the mother of the complainant. At that time, when Baluben tried to intervene, accused no.1 gave two sword blows on her head and one blow on thigh. The accused no.6 gave stick blow on the right hand of the wife of the complainant, Jashiben. The accused no.1 gave stick blows on the head and hand of Jashiben. 2.1 As a result of which, the complainant side received severe injuries on vital parts of the body. Thereafter, they were taken to Civil Hospital, Mehsana. The complainant has given complaint in the hospital itself, which came to be recorded by the Police Constable and, thereafter, sent to Mehsana City Police Station for registration and on receiving the same, it has been registered as Mehsana City CR.A/174/1999 5/22 JUDGMENT Police Station I-C.R.No.371/1996 for the offence under Sections 147, 148, 149, 302, 323, 324, 325 and 307 of the Indian Penal Code. 3.0 Simultaneously, the accused of above referred I-C.R.No.371/1997 viz., Gabhaji Thakor also filed complaint against the complainant and other family members of I-C.R.No.371/1996 alleging that Keshaji along with other accused armed with deadly weapons like dharia, stick, axe etc. had come and made grievance as to why they had given water tank of iron to one Tajiben and, thereafter, started abusing them. Thereafter, after making an unlawful assembly, started assaulting them, wherein, Keshaji gave dharia below on the head of the complainant i.e. Gabhaji. At that time, Lakiben tried to intervene, however, Keshaji also gave dharia blow on her head. Accused no.6 also gave stick blow to the wife of the complainant, Lakhiben. At that time, Ramilaben tried to intervene and, hence, accused no.1 gave dharia blow on her head. Therefore, same has been recorded by the Head Constable and sent the same for registration and on receiving the same, P.S.O. registered the offence as Mehsana City Police Station I-C.R.No.372/1996 against Keshaji and other under Sections 147, CR.A/174/1999 6/22 JUDGMENT 148, 149, 326, 325 and 323 of the Indian Penal Code. 4.0 Thereafter, P.S.O. handed over the investigation to Investigating Officer, who in turn, kept the report and complaint with the investigation papers and proceeded further with the investigation. 4.1 First he went to the place of offence, called panchas and prepared panchnama of scene of offence and, thereafter, seized muddamal as mentioned in the panchnama. Thereafter, he recorded the statements of various witnesses. 4.2 Meanwhile, he came to know that the victim was shifted from Mehsana Civil Hospital to Ahmedabad Civil Hospital and, hence, he went to Ahmedabad Civil Hospital for recording the statement of victim and, thereafter, as the physical condition of the victim was deteriorating, he called Executive Magistrate for recording dying declaration. 4.3 In pursuance of that, the Executive Magistrate reached hospital and recorded the dying declaration. On 27.10.1996, the victim succumbed to the injuries and, therefore, he filed report to concerned Magistrate for adding Section 302 of the Indian Penal Code into the offence. 4.4 P.S.I. also prepared inquest panchnama in presence of panchas and also made CR.A/174/1999 7/22 JUDGMENT arrangements to send dead body of the deceased for post mortem. During the course of investigation, muddamal was seized by drawing panchnama to that effect and sent the same to FSL. He also arrested the accused persons and seized the muddamal used by them by preparing necessary panchnama. 5.0 Simultaneously, investigation of I- C.R.No.372/1996 has also been proceeded further. The Investigating Officer also recorded the statements of various witnesses, seized muddamal, collected injury certificates of injured. He also drew panchnama of scene of offence etc. 6.0 Upon completion of investigation, he submitted the charge sheet against the accused before the Learned Chief Judicial Magistrat, Mehsana in both the cases. 6.1 As both the offences alleged against the accused were exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Mehsana committed both cases to the Court of Sessions at Mehsana where same were numbered as Sessions Case No.22/1997 & 32/1997 respectively and transferred to learned Additional Sessions Judge, Mehsana for disposing of the same on merits. 6.2 On production of the accused, the Learned Additional Sessions Judge framed separate CR.A/174/1999 8/22 JUDGMENT charge in both the Sessions Cases. The accused pleaded not guilty to the charge and claimed to be tried. 7.0 To prove the case against the accused, the prosecution examined 23 witnesses in all in Sessions Case No.22/1997 namely, P.W.No.1 viz., Keshaji Gulabji at Exh.37, P.W.No.2 viz., Divaben Gulabji at Exh.39, P.W.No.3 viz., Talaji Bhagaji at Exh.44, P.W.No.4 viz., Vinodji Divanji at Exh.47, P.W.No.5 viz., Rameshkumar Parshottamdas Patel at Exh.49, P.W.No.6 viz., Kanugiri Ishvargiri Goswami at Exh.51, P.W.No.7 viz., Mafabhai Bhavanbhai at Exh.52, P.W.No.8 viz., Bharsinh Javansinh at Exh.54, P.W.No.9 viz., Mahemudkhan Usmankhan Pathan at Exh.55, P.W.No.10 viz., Talshi Hirabhai at Exh.57, P.W.No.11 viz., Sikandar Hussainbhai Shaikh at Exh.58, P.W.No.12 viz., Mahendrasinh Gulabsinh Chavda at Exh.60, P.W.No.13 viz., Dr.Somabhai Hargovandas Patel at Exh.63, P.W.No.14 viz., Mahebubbhai Gulabbhai Chavda at Exh.76, P.W.No.15 viz., Mangaji Kanaji at Exh.78, P.W.No.16 viz., Khushiben Keshaji at Exh.79, P.W.No.17 viz., Jashiben Kantiji at Exh.80, P.W.No.18 viz., Lilaji Babaji at Exh.82, P.W.No.19 viz., Dr.Dipakkumar Champaklal Jagani at Exh.78, P.W.No.20 viz., Jagdish Shankarbhai Parmar at Exh.89, CR.A/174/1999 9/22 JUDGMENT P.W.No.21 viz., Dr.Naresh Bhupendra Joshi at Exh.94, P.W.No.22 viz., Baldevji Shivaji at Exh.99 and P.W.No.23 viz., Jaysinh Gulabsinh Parmar. 7.1 The prosecution also relied upon various documentary evidence such as complaint at Exh.38, inquest panchnama at Exh.43, recovery panchnama of accused no.1 at Exh.45, panchnama of scene of offence at Exh.48, recovery panchnama of accused nos.8, 5, 4 & 7 at Exh.50, seizure of clothe of complainant panchnama at Exh.56, seizure clothe panchnama at Exh.59, injury certificate of Baluben Samaji at Exh.64, injury certificate of Keshaji Galabji at Exh.65, injury certificate of Divaben Gulabji at Exh.66, injury certificate of Khushiben Keshaji at Exh.67, injury certificate of Jashiben Kantiji at Exh.68, injury certificate of Lilaji Babaji at Exh.69, recovery panchnama of accused no.3 at Exh.77, P.M. Note at Exh.88, dying declaration of Baluben Somaji at Exh.91, FSL Report at Exh.109 and serological report at Exh.110, report for adding Section 302 of the Indian Penal Code at Exh.113, 8.0 To prove the case against the accused, the prosecution examined 13 witnesses in all in Sessions Case No.32/1997 namely, P.W.No.1 CR.A/174/1999 10/22 JUDGMENT viz., Dr.Somabhai Hargovandas Patel at Exh.33, P.W.No.2 viz., Gopalbhai Jayrambhai Prajapati at Exh.40, P.W.NO.4 viz., Bharatsinh Javansinh at Exh.42, P.W.No.5 viz., Prajapati Babubhai Keshabhai at Exh.43, P.W.No.6 viz., Mahavir Kedarnath at Exh.53, P.W.No.7 viz., Gabhaji Ravaji at Exh.54, P.W.No.8 viz., Kamuben Gabhaji at Exh.56, P.W.No.9 viz., Ramilaben Gandaji at Exh.57, P.W.No.10 viz., Laxmiben @ Lakhiben Ravaji at Exh.58, P.W.No.11 viz., Hasmukhbhai Laxmanbhai at Exh.60, P.W.No.12 viz., Baldevji Shivaji at Exh.64 and P.W.NO.13 viz., Jaysinh Gulabsinh Parmar at Exh.66. 8.1 The prosecution also relied upon various documentary evidence such as panchnama of scene of offence at Exh.27, FSL Letter at Exh.30, FSL Report at Exh.31, serological report at Exh.32, injury certificate of Kamiben Gabhaji Thakor at Exh.34, injury certificate of Gabhaji Ravaji at Exh.35, injury certificate of Ramilaben Gandaji Thakor at Exh.36, injury certificate of Laxmiben Ravaji Thakor at Exh.37, discovery panchnama at Exh.39, seizure of clothe panchnama at Exh.41 and complaint at Exh.55. 8.2 On submission of closing purshis by the prosecution in both the cases, Learned Additional Sessions Judge, recorded the CR.A/174/1999 11/22 JUDGMENT further statement of each accused under Sec.313 of Cr.P.C. qua the incriminating evidence in the cases wherein the accused came out with the case of total denial. The accused however did not examine any witness. Thereafter, upon hearing the learned counsel appearing for the respective parties, learned Additional Sessions Judge, Mehsana, delivered the impugned judgments on same day and convicted the accused as stated above giving rise to file the aforesaid appeals. 9.0 As both the appeals and the Criminal Revision Application arise out of the same incident, which took place on 25.10.1996, they were heard together and are being decided by this common judgment. 9.1 Heard learned counsel for the appellant, Ms.Sneha Joshi in Criminal Appeal No.174 of 1999, learned counsel for the appellant, Mr.Mehul Sharad Shah in Criminal Appeal No.190 of 1999, learned counsel for the appellant, Mr.P.K. Jani in Criminal Revision Application No.176 of 1999 and Learned Additional Public Prosecutor, Mr.H.L. Jani for the State in all matters. 10.0 It has been mainly argued by the learned counsel for the appellant, Ms.Sneha Joshi that the appellant of Criminal Appeal No.174/1999 is totally innocent and has been CR.A/174/1999 12/22 JUDGMENT falsely involved in the crime in question. 10.1 It is also argued that the complainant side were the aggressors and the appellant along with other accused armed with deadly weapons had gone there and assaulted the complainant and family members, however, in the said incident, they also received injuries and, hence, at the most, it can be said to be a case of free fight. 10.2 It is also argued that prior to the alleged incident, no opportunity was given by the complainant. According to her, it was a pre- plan wherein the complainant and others armed with deadly weapons came and assaulted the accused and, hence, in these circumstances, the appellant has tried to save themselves and received injuries and said fact has been proved by the prosecution by way of independent evidence i.e. the injury certificate etc. 10.3 It has been further argued that at the most, it is a case of sudden provocation, which took place in a spur of moment and, hence, it cannot be said that there was any intention on the part of the appellant-accused to kill the deceased. 11.0 Learned A.P.P., Mr.Jani has also taken us through the oral evidence of witnesses and submitted that it is a case, wherein present CR.A/174/1999 13/22 JUDGMENT appellant has only been convicted for life as his role has been established. 11.1 According to him, as per panchnama of scene of offence, the incident took place in front of the house of the complainant, wherein the appellant along with others armed with deadly weapons went there and initially, altercation took place and, thereafter, assaulted the complainant side. Therefore, it cannot be said that there was no intention or pre-plan or the incident has taken place in a spur of moment and, therefore, according to him, it is a case, wherein no inference is called for. 12.0 Learned counsel, Mr.Mehul Shah has argued that the appellant-accused of Criminal Appeal No.190/1999 is totally innocent and has been falsely implicated into the crime in question looking to the way in which, the incident has taken place and also keeping in mind the injuries received by the appellant and their members and the fatal injuries received by one Babuben. 12.1 Mr.Shah has taken us through the panchnama of scene of offence and other evidence on record and argued that as per the panchnama of scene of offence, place of the incident is in front of the house of the appellant, wherein other side came there along with deadly weapons in CR.A/174/1999 14/22 JUDGMENT their hand and after altercation, they started assaulting with deadly weapons to the present appellant and other women and, hence, whatever has been done by them is to protect themselves. 12.2 According to him, it cannot be said that the present appellant and his family members were the aggressors. 12.3 Mr.Shah has also placed reliance upon the case reported in 2004(9) SCC 292, more particularly, head notes A & C, which reads as under :- “Penal Code, 1860 – Ss. 97 and 99 – Right to private defence – Whether available to the accused – Determination of – Necessary considerations – Injuries received by accused, imminence of threat to his safety, injuries caused by accused and circumstance whether accused had time to have recourse to public authorities, held, are relevant factors – Whether accused had chance to inflict severe and mortal injury on the aggressor, held, not relevant – In moments of excitement and disturbed mental equilibrium, parties cannot be expected to preserve composure and use only so much force in retaliation commensurate with the danger apprehended – Due weightage to be given to what happens on the spur of the moment – Plea CR.A/174/1999 15/22 JUDGMENT cannot be based on surmise and speculation – Situations to be judged pragmatically keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration – Microscopic scrutiny, held, should be avoided. Penal Code, 1860 0 S. 102 – Right of private defence of body – Commencement and continuance of” 13.0 As against the arguments of Mr.Shah, Mr.Jani has adopted the submission as canvassed against the arguments of Ms.Joshi. 13.1 Over and above, it is also submitted that at the most, the Court can come to a conclusion that it is a case of free fight between two groups, wherein both the side have received injuries and, therefore, while deciding the matters, the Court should keep in mind all aspects. 14.0 We have gone through the oral as well as documentary evidence of both the cases for the purpose of deciding the aforesaid matters. 14.1 What is required to be kept in mind is the panchnama of scene of offence, Exh.48, which shows that it has been prepared in the presence of panchas in detail and same has been proved by the evidence of the CR.A/174/1999 16/22 JUDGMENT prosecution witnesses viz., P.W.No.4, Vinodji Divanji Thakor, Exh.47 and P.W.No.23, Jaysing Gulabsinh Parmar, Exh.100. Thus, by way of above referred evidence, the panchnama has been proved and muddamal seized from the place of offence has been sent to FSL and on receiving the report, it is also a part of prosecution case as Exh.109 and 110 respectively. We have gone through the panchnama of scene of offence, upon which, reliance has been placed by all concerned parties, wherein the place of incident is shown as in front of the house of Thakor Keshaji, which also gets support from the map of scene of offence prepared by the Circle Inspector, Exh.85 (Pg.No.134). 14.2 In short, it is established from the above referred evidence that the place of incident is in front of the house of complainant, Keshaji and. Over and above, from the oral evidence of witnesses, who are the injured witnesses namely P.W.No.1, Keshaji Gulabji at Exh.37, P.W.No.2, Divaben Gulabji, at Exh.39, P.W.No.6, Kanugiri Ishvargiri Goswami, at Exh.50, P.W.No.17, Jashiben Kantiji at Exh.80 and P.W.No.18, Lilaji Babaji at Exh.82, their presence is established and, hence, it cannot be discarded because they get support from the injury certificate produced and proved by CR.A/174/1999 17/22 JUDGMENT the prosecution. 14.3 It is also required to be noted that at the earliest, the injured and victim were taken to hospital, where they were treated by the doctor and at the earliest, the complaint has been filed by the complainant narrating incident in detail along with their respective role. It is also required to be noted that they are staying in the same locality, they are from same community and they know to each other from their childhood. Moreover, the incident in question has taken place at 8 p.m. at night and the altercation has taken place prior to the incident and, therefore, the question of misidentification may not be arisen at all. 14.4 Simultaneously, so as to prove the role of the complainant and other accused of Sessions Case No.32 of 1997, the prosecution has examined in all 13 witnesses and out of them, most of the witnesses are injured witnesses and their injuries have been proved by the prosecution by way of injury certificate received from the hospital. 14.5 From the above, it appears that following witnesses are the witnesses of incident namely, P.W.No.8, Kamuben Gabhaji at Exh.56, P.W.No.9, Ramilaben Gandaji at Exh.57 and P.W.No.10, Laxmiben @ Lakhiben Ravaji at CR.A/174/1999 18/22 JUDGMENT Exh.58. 14.6 All the above referred witnesses are the injured witnesses and, therefore, their presence cannot be discarded at the scene of offence. 15.0 Now what is required to be done is to evaluate the evidence on record keeping in mind the judgments relied on by the learned counsel for the appellant, Mr.Shah, reported in (2004)9 scc 292 in the case of Shriram V/s. State of M.P. 15.1 Keeping in mind the ratio laid down by the Apex Court, we have evaluated the evidence on record and come to a conclusion that the incident in question has taken place on the road or we can say that the place, which is between the house of the accused and the complainant. 15.2 It is also required to be noted that as stated above, both the sides were having deadly weapons and same were used by them freely and as a result of that, the injuries were received by both the sides and prosecution has proved the same accordingly. So it can be said that it was a case of free fight and prior to that, altercation has taken place. As they are staying in same maholla, during the course of altercation, they were gathered there along with weapons CR.A/174/1999 19/22 JUDGMENT and then incident in question has taken place by way of free fight and, therefore, we would like to say that it is a case, wherein both the side involved themselves actively and it is an incident, which has taken in a spur of moment and by way of sudden provocation. 15.3 It is also required to be noted that whenever a free fight takes place between two groups with deadly weapons, it will hit somebody and, hence, it cannot be said to be an intention to hit a particular person. What is required to be decided is that it is a case of free fight, wherein both the side used weapons freely and number of witnesses along with the victim received injuries and the victim succumbed to the injuries. Therefore, it is a case of altercation at first instance and then sudden provocation and it took place in heat and excitement. 16.0 We have also taken into consideration all the above aspects of the matter and we are of the opinion that it is the aforesaid incident, which resulted into 302 of the Indian Penal Code, but it has taken due to sudden provocation and in a spur of moment. Therefore, one cannot come to a clear conclusion that there was any intention on the part of the assailants to kill a particular person. At the most, we can say CR.A/174/1999 20/22 JUDGMENT that they were having deadly weapons and same have been used freely and as a result of that, the victim received injuries, which resulted into 302 of the Indian Penal Code, but as stated above, it cannot be said to be an intention of the appellant-original accused no.1 to kill the victim. 16.1 As far as appellant-accused no.1 viz., Gabhaji Ravaji Thakor of Criminal Appeal No.174 of 1999 is concerned, from the record, it appears that he has already undergone more than 8 years of imprisonment and which will meet the ends of justice. 17.0 As far as appellant-accused viz., Keshaji Gulabji Thakor of Criminal Appeal No.190 of 1999 is concerned, we are of the opinion that the way in which the incident has taken place very near to the house, wherein their role is defensive in nature and keeping in mind the ratio laid down by the Apex Court, he is required to be acquitted because he was trying to save life of the victim and other members and during that process, if he used any force, it cannot be said that it was his intention to assault a particular person. Not only that, he himself received very serious injuries and was admitted in hospital. Keeping in mind the above fact, he is required to be acquitted. CR.A/174/1999 21/22 JUDGMENT 18.0 Criminal Appeal No.174/1999 is partly allowed. Judgment and Order of conviction and sentence dated 30.01.1999 delivered by