CR.A/881/2005 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 881 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL AND HONOURABLE MR.JUSTICE H.B.ANTANI ============================================================== 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 SAKARAJI (SAKAJI) KALAJI & 15 - Appellant(s) Versus THE STATE OF GUJARAT - Opponent ============================================================== Appearance : MR YF MEHTA for Petitioners MR KT DAVE, ADDITIONAL PUBLIC PROSECUTOR for Respondent ===================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 11/08/2005 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) 1. Instant appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against CR.A/881/2005 2/31 JUDGMENT judgment dated April 21, 2005 rendered by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana, in Sessions Case No. 226 of 2003, by which all the appellants are convicted under Section 135 of the Bombay Police Act, whereas appellant Nos. 3, 4 and 13 are convicted under Sections 147, 148, 307, 323, 324 read with 149 IPC, and others are convicted under Section 147 and 148 IPC as well as Section 307 read with Section 149 IPC and Sections 324 read with Section 149 IPC as well as Section 323 read with Section 149 IPC; and each sentenced to imprisonment till rising of the Court for commission of offence punishable under Section 135 of the Bombay Police Act, whereas the appellant Nos. 3, 4 and 13 are ordered to be released on probation of good conduct for a period of two years on furnishing Personal Bond in the sum of Rs. 5,000/- (Rupees Five Thousand Only) and each of the other appellants is sentenced to RI for 2 years and fine of Rs.2,000/- (Rupees Two Thousand Only), in default SI for two months for commission of offences punishable under Sections 147 and 148 IPC and RI for 10 years and fine of Rs.5,000/-, in default SI for 10 months for commission of offence punishable under Section 307 read with Section 149 IPC as well as RI for 3 years and fine of Rs.1,500/- (Rupees One Thousand And Five Hundred CR.A/881/2005 3/31 JUDGMENT Only), in default SI for 2 months for commission of offence punishable under Section 324 read with Section 149 IPC and, also, RI for 1 year and fine of Rs.1,000/- (Rupees One Thousand Only), in default SI for 1 month for commission of offence punishable under Section 323 read with Section 149 IPC. It may be stated that substantive sentences imposed on each appellant except appellants Nos. 3, 4, 13, are ordered to run concurrently. 2. The facts emerging from the record of the case are as under: The incident in question took place on April 22, 2003 in Village: Karannagar, Taluka: Kadi, District: Mehsana. On the day of incident, the complainant i.e. Baldevji Pujaji Thakore, in the company of Keshaji Veraji, Govindji Keshaji, Udaji Somaji, Prahladbhai Somaji, Ratisinh Somaji, Dasharatji Balaji, etc went in the tractor of Somaji Revaji to offer food to their deity, namely, Meldimata, at the temple situated in their field, located in the sim of the village. When they returned home at about 9 P.M., they were accosted and assaulted by the accused. The prosecution-case is that when Baldevji was in tractor, accused No. 15, i.e. Manuji CR.A/881/2005 4/31 JUDGMENT Gandaji, caused injury on his head and temple by means of a dharia. According to the prosecution, on receipt of injuries, the complainant started bleeding and fell down. What is claimed by the prosecution is that thereafter, rest of the accused started beating Keshaji Veraji, Govindji Keshaji, Ratisinh, Dasharatji, etc. As those who had accompanied the complainant were assaulted, shouts were raised, as a result of which, village people gathered and, therefore, the accused fled the place of incident. The injured were removed to the Community Health Centre, Kadi, for treatment. According to the prosecution, the motive which prompted the appellants to assault the complainant and others was dispute between Thakore Arjanji Somaji and Thakore Govindji Kesaji regarding right of way near boundary of field. The complainant lodged his complained at Community Health Centre itself with Mr. M.J.Desai, who was then PSI of Kadi Police Station. The complaint, which was reduced into writing, was forwarded to PSO of the Police Station for registration of offences. After registration of offences, the same was handed-over to Mr. Desai for investigation. The Investigating Officer drew panchnama of the place of incident and recorded statements of those persons who were found to be conversant with the facts of CR.A/881/2005 5/31 JUDGMENT the case. The accused were arrested and weapons used in commission of crime were seized, which were discovered pursuant to disclosure statements made by them. Incriminating articles seized were sent to FSL for analysis. On completion of investigation, the appellants were charge-sheeted in the Court of learned Judicial Magistrate (First Class), Kadi, on the basis of which, Criminal Case No. 1961 of 2003 was registered against the appellants. As the offence punishable under Section 307 is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Mehsana, for trial, where it was numbered as Sessions Case No. 226 of 2003. 3. The learned Additional Sessions Judge, Mehsana, to whom the case was made over for trial, framed necessary charge against the accused at Exh. 36. It was read-over and explained to them. They pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined: (1) Dr. Parul Chandrakant Sheth as PW 1, at Exh. 56; (2) Dr. Mustakahmed Gulamrasul Shaikh as PW 2, at Exh. 66; (3) Dr. Gopalbhai Somabhai Makwana as PW 3, at Exh. 69; (4) complainant, Baldevji Pujaji Thakore as PW 4, at Exh. 72; (5) injured, Keshaji Vervaji Thakore as PW 5, at Exh. 75; (6) injured, Ratisinh Somaji CR.A/881/2005 6/31 JUDGMENT Thakore as PW 6, at Exh. 79; (7) Gopalji Keshaji Thakore as PW 7, at Exh. 80; (8) injured, Fatesinh Somaji Thakore as PW 8, at Exh. 81; (9) injured, Udaji Somaji Thakore as PW 9, at Exh. 82; (10) injured, Motiben Ambarambhai Thakore as PW 10, at Exh. 83; (11) panch, Mustufabhai Alikhan as PW 11, at Exh. 84; (12) panch, Gandaji Vihaji Thakore as PW 12, at Exh. 86, (13) panch, Chanduji Somaji Thakore as PW 13, at Exh. 88; (14) panch, Pratapji Shivaji Thakore as PW 14, at Exh. 89; (15) panch, Vishnuji Pujaji Thakore as PW 15, at Exh. 92; (16) panch, Bhupendrabhai Iswarlal Joshi as PW 16, at Exh. 93; (17) injured, Govindji Keshaji Thakore as PW 17, at Exh. 96; (18)injured, Dashrathji Babuji Thakore as PW 18, at Exh. 113; and (19) Investigating Officer, PSI Mr. M. J. Desai, as PW 19, at Exh. 114, to prove its case against the appellants. The prosecution also produced documentary evidence such as certificates of injuries sustained by injured witnesses, panchnama of place of incident; panchnama, indicating discovery of weapons, pursuant to disclosure statements made by the accused; FSL Report, etc. in support of its case against the appellants. 4. After recording of evidence of prosecution witnesses CR.A/881/2005 7/31 JUDGMENT was over, the learned Judge explained to the appellants, the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements, as required by Section 313 of the Code of Criminal Procedure, 1973. In further statement, the case of each appellant was that he had not caused any injury to the injured, as claimed by the prosecution and that a false case was foisted upon him. However, no defence evidence was adduced by any of the appellants. 5. On appreciation of evidence adduced by the prosecution, the learned Judge held that in view of the fact that accused, Arjanji Thakore, was scolded by Govindji with regard to damage to hedge, the appellants had formed unlawful assembly and armed themselves with different weapons, such as, sword, dharia, etc, as a result of which, commission of offences punishable under Sections 147, 148 read with Section 149 IPC was established. The learned Judge further held that it was proved by the prosecution that the appellant No.15 i.e. Manuji Gandaji as well as appellant No. 11 i.e. Ramanji Gandaji and appellant No. 7 i.e. Chhanaji Jethaji, were armed with dharias whereas appellant No. 2 Jayantiji Ghabhaji, was armed with sword, and they attempted to CR.A/881/2005 8/31 JUDGMENT commit murder of witness, Govindji, whereas appellant No.12, Arjanji Somaji, gave blows with stick on head and back of Govindji and caused injury by stick on his back, and appellant No. 14 i.e. Gandaji Joitaji, who was armed with stick and appellant No. 4 i.e. Amaratji Chhanaji caused injuries to Govindji, and, therefore, commission of offences punishable under Sections 307, 324, 323 read with Section 149 IPC was established. The learned Judge concluded that it was proved by the prosecution that in an attempt to murder Keshaji Vervaji Thakore, appellant No. 16 i.e. Kalaji Somaji caused injury with dharia on his head whereas appellant No. 2 i.e. Jayantiji Ghabhaji, caused injury on finger of his left-hand by means of a sword, and appellant No. 6 i.e. Kantiji Prahladji, and appellant No. 7 i.e. Chhanaji Jethaji as well as appellant No. 10 i.e. Rameshji Chhanaji caused injury to him by means of dharia, sticks, etc. and, therefore, commission of offences punishable under Sections 307, 324, 323 read with Section 149 IPC was also established. According to the learned Judge, the complainant i.e. Baldevji Pujaji was assaulted by means of dharia, by accused No. 15 i.e. Manuji Gandaji and, therefore, commission of offence punishable under Section 324 read with Section 149 IPC was established. The learned Judge CR.A/881/2005 9/31 JUDGMENT further deduced that appellant No. 6 i.e. Kantiji Prahladji Dashrathji caused injury on palm of right hand by means of a danti to Ratisinh @ Revaji Somaji whereas appellant No. 2 i.e. Jayantiji Ghabhaji caused injury to Ratisinh on his head and temple by means of sword and appellant No. 12 i.e. Arjanji Somaji caused injury to him by means of a stick and, therefore, commission of offences punishable under Sections 324, 323 read with 149 IPC was proved. The learned Judge concluded that witness, Udaji Somaji Thakore, was assaulted by appellant No. 7 i.e. Chhanaji Jethaji, whereas appellant No. 12 i.e. Arjanji Somaji assaulted him by means of a stick, and witness Fatehsinh Somaji was assaulted by appellant No. 1 i.e. Sakaraji Kalaji by means of dharia whereas appellant No. 8 i.e. Ashokji Chhanaji assaulted witness Fatesinh by dharia which landed on his left shoulder, whereas appellant No. 3 i.e. Somaji Sakaraji assaulted him by means of stick and appellant No. 13 i.e. Sardarji Channaji by means of danti whereas appellant No. 7 i.e. Chhanaji Jethaji assaulted him by means of a club and, therefore, commission of offences punishable under Sections 307, 323, 324 read with Section 149 IPC was also established. According to the learned Judge, it was not proved by the prosecution that appellant No. 10 i.e. CR.A/881/2005 10/31 JUDGMENT Rameshji Chhanaji threw stones and, therefore, commission of offence by the accused punishable under Sections 337 read with Section 149 IPC was not established. The learned Judge also held that it was not proved by the prosecution that offence punishable under Section 504 read with Section 149 IPC was committed by any of the accused. However, the learned Judge held that the appellants had armed themselves with different weapons in breach of notification issued by District Magistrate, Mehsana, under Section 37 (1) of the Bombay Police Act and had, therefore, committed offence punishable under Section 135 of the Bombay Police Act. In view of abovereferredto conclusions, the learned Judge has convicted the appellants under Sections 147, 148, 149, 323, 324, 307 IPC read with Section 149 IPC and Section 135 of the Bombay Police Act and imposed sentences enumerated earlier, by judgment dated April 21, 2005, giving rise to instant appeal. 6. Mr. Y.F. Mehta, learned Counsel of the appellants, contended that the evidence on record indicates that there was free fight and / or mutual fight between the appellants and prosecution witness, as a result of which, the learned Judge of the Trial Court was not justified in CR.A/881/2005 11/31 JUDGMENT invoking provisions of Section 149 IPC to the facts of the case. It was argued that appellants Nos. 1, 2, 9, 14, 15 and 16 sustained bleeding injuries, which are not explained by any of the prosecution witnesses and as genesis of the incident in question is suppressed by the prosecution, the appellants are entitled to acquittal. It was argued that non-explanation of injuries sustained by the appellants should prompt the Court to draw the inferences, as stated by the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar, AIR 1976 SC 2263, and that the appellants should be acquitted, more particularly when it probabalises the case of each appellant that he is falsely involved in the case. The learned Counsel emphasised that perusal of testimony given by each injured witness makes it evident that he is not supported by medical evidence regarding his own injuries and, therefore, the judgment impugned deserves to be set aside. What was maintained by the learned Counsel of the appellants was that the evidence on record has been completely misread by the learned Judge of the trial court and, therefore, the appeal should be allowed. 7. Mr. K. T. Dave, learned Additional Public Prosecutor for the State, argued that injured witnesses would not CR.A/881/2005 12/31 JUDGMENT allow the real culprits to go scot-free and involve innocent persons falsely, as a result of which, well- founded conviction of the appellants based on the testimony of injured witnesses should be upheld by this Court. The learned Additional Public Prosecutor pointed out to the Court that non-explanation of injuries on the facts and in the circumstances of the case cannot be regarded as having vitiating effect on the prosecution case and, therefore, the plea based on non-explanation of injuries should not be accepted by the Court. It was argued by the learned Additional Public Prosecutor that to some extent, the injured witnesses stand corroborated by medical evidence on record, and, therefore, no benefit of doubt should be given to any of the appellants, as is sought to be claimed by the learned Counsel of the appellants. The learned Additional Public Prosecutor for the State asserted that cogent and convincing reasons have been assigned by the learned Judge of the Trial Court, who had advantage of observing demeanour of the witnesses, for convicting the appellants, and as the learned Counsel of the appellants has failed to dislodge those weighty reasons, the appeal, which lacks merits, should be dismissed. CR.A/881/2005 13/31 JUDGMENT 8. It may be mentioned that pursuant to direction contained in order dated August 3, 2005, the learned Counsel of the appellants has submitted paper-book for perusal of the Court. This Court has heard Mr. Y.F. Mehta, learned Counsel of the appellants as well as Mr. K.T. Dave, learned Additional Public Prosecutor for the State, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. In order to ascertain whether there was free and / or mutual fight between the appellants and injured, it would be relevant to notice testimony of Dr. Parul Chandrakant Sheth, recorded at Exh. 56. The Doctor, has in paragraph-1 of her testimony, in terms stated that injured Govindji Keshaji Thakore had come to Community Health Centre without Police Yadi and informed her that he had received injuries in a brawl. Similarly, her testimony indicates that Thakore Keshaji Vervaji, who had approached her without Police Yadi, had given history of assault as mutual fight. Her testimony further shows that similar history of assault was stated by injured Thakore Baldevji Pujaji, Thakore Ratisinh Somaji, Thakore CR.A/881/2005 14/31 JUDGMENT Udaji Somaji, Thakore Motiben Ambarambhai, etc. This is evident if one peruses what is stated by the Doctor in paragraphs 3 to 7 of her testimony. Further, answer given in cross-examination by injured Keshaji Vervaji Thakore, examined at Exh. 75, makes it very evident that mutual fight had taken place between two groups and that the same had continued till arrival of police at the place of incident. The evidence of most of the injured witnesses establishes that appellant Nos. 1, 2, 9, 14, 15 and 16 were injured in the incident in question. The appellant Nos. 1, 2, 9, 14, 15 and 16 would not have received injuries if free and / or mutual fight had not taken place between the two groups. What is relevant to notice is that Investigating Officer Mr. M. J. Desai, in his testimony recorded at Exh. 114, has in terms, stated that inter se fight had taken place between the members of Thakore Community and that those who were injured, belonged to two different groups, and were removed to Community Health Centre for treatment in one tractor. This fact is stated by the Investigating Officer in the introductory part of his testimony. Thus, there is no manner of doubt that a free and / or mutual fight had taken place between two groups of Thakore Community on the day of incident. CR.A/881/2005 15/31 JUDGMENT The question, therefore, which arises for consideration of this Court, is whether the learned Judge of the Trial Court, was justified in invoking provisions of Section 149 IPC to the facts of the case. In Kanwarlal and Another Vs. State of M. P., AIR 2002 SC 3690, the Supreme Court has authoritatively ruled that in a case of free fight, conviction by recourse to Section 149 is not permissible. What is laid down therein is that unless it is shown that a particular accused caused injuries, he cannot be convicted with the aid of Section 149 IPC. In the said case, free fight had taken place between the accused-party and the deceased party for quite some time. One of the accused fired gunshots causing instantaneous death of the deceased. As it was a case of free fight, the Supreme Court has held that conviction by recourse to Section 149 was not permissible. The Supreme Court further found that shot was fired under sudden and grave provocation during the fight and, therefore, the accused was guilty under Section 304 Part II IPC, but remaining accused, who had not played any role at all, were not liable to be convicted with the aid of Section 149 IPC. Applying the principle laid down by the Supreme Court in abovequoted decision, to the facts of case on hand, this Court finds that this is a case of free fight between the accused CR.A/881/2005 16/31 JUDGMENT party and the injured. Under the circumstances, recourse to Section 149 was not permissible. Therefore, the conviction of the appellants recorded with the aid of Section 149 is liable to be set aside. Once the Court comes to the conclusion that recourse to Section 149 IPC is not permissible, the Court will have to find out whether it is shown that a particular accused caused injuries to particular injured witness/es. Unless and until it is shown that a particular accused caused injuries to a particular injured witness, he cannot be convicted. Before ascertaining as to which appellant caused injury to whom, it would be relevant to notice the glaring feature appearing in the case on hand. The testimony of Dr. Parul Chandrakant Sheth makes it amply clear that appellant Nos. 1, 2, 14, 15 and 16 were examined and treated by her and that all of them had sustained bleeding injuries. What is mentioned by the Doctor in her testimony is that those injuries were visible. The fact that some of the appellants were injured and had gone to Community Health Centre for treatment is admitted by complainant Baldevji Pujaji Thakore, examined at Exh. 72, in his cross-examination by CR.A/881/2005 17/31 JUDGMENT the defence. Injured Keshaji Vervaji Thakore, in his testimony recorded at Exh. 75, has stated that he had not seen the injuries sustained by the accused but he had to admit the fact that he and his family members were being prosecuted for assaulting the accused. Witness Ratisinh Somaji Thakore has admitted in his cross-examination that he was one of the accused in cross-case, wherein others were also being prosecuted for assaulting the accused. Witness Udaji Somaji Thakore has declined to offer any explanation regarding injuries sustained by the accused. In view of evidence tendered by prosecution, this Court is of the opinion that the principles laid down by the Supreme Court in Lakshmi Singh and Others (supra) would apply to the facts of the case and it would be reasonable to draw the following inferences: (i) that the prosecution has suppressed the genesis and origin of the occurrence and has, thus, not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; and, (iii)that in case there is defence version which explains the injuries on the person of the accused, it is CR.A/881/2005 18/31 JUDGMENT rendered probable so as to throw doubt on the prosecution-case. Again, in Rukma (Smt) and Others Vs. Jala and Others, (1997) 11 SCC 579, injuries were received by six accused during the incident. It was found that injuries received by two of them were not minor. It was noticed that there was denial by injured witnesses to have caused any injury to any of the accused, and that it was flatly denied by them that they had weapons with them at the time of incident. On the facts and in the circumstances of the said case, the Supreme Court has held that the High Court was justified in not placing reliance on such witnesses and possibility of innocent persons being roped in was not ruled out. Coming to the facts of the case on hand, though this Court finds that as many as six appellants had received bleeding injuries, which were visible, the injured witnesses have denied to have caused any injury to any of these appellants. They have also flatly denied that they had weapons with them at the place of incident. On the facts and in circumstances of the case, this Court is of the opinion that it would not be prudent to place reliance on such witnesses for the purpose of fastening criminal liability on the appellants because genesis of the incident is suppressed and CR.A/881/2005 19/31 JUDGMENT possibility of innocent persons being roped in is not ruled out at all. 10. However, this Court does not propose to throw the prosecution-case overboard only on the ground that genesis of the incident is suppressed by the prosecution because the injuries sustained by some of the appellants are not explained and that it is not prudent to place reliance on evidence of the injured witnesses. This Court proposes to scrutinise the evidence of each injured witness to ascertain whether any case is made out by him with reference to injuries sustained by him against any of the appellant / appellants. Coming to the testimony of injured complainant Baldevji Pujaji, this Court finds that he has stated that he was inflicted two dharia blows on his head by Manuji Gandaji, who is appellant No. 15. However, the medical evidence tendered by Dr. Parul Sheth, recorded at Exh. 56, makes it evident that complainant Baldevji had sustained one Contused