CR.A/245/2000 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 245 of 2000 With CRIMINAL APPEAL No. 285 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RANAJI ABHERAJJI JADEJA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 245/2000 Mr. Yogesh Lakhani, ld. sr. counsel with Mr. Tushar Chaudhary for the appellants-accused Mr. Maulik G. Nanavati, APP, for the respondent State Criminal Appeal No. 285/2000 Mr. Maulik G. Nanavati, APPl for the appellant State Mr. Yogesh Lakhani, ld. sr. counsel with Mr. Tushar Chaudhary CR.A/245/2000 2/8 JUDGMENT for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 26/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed against the judgement and order of conviction dated 10.2.2000 passed by the learned Additional Sessions Judge, Kutch-Bhuj convicting original accused Nos. 5, 10 and 12 and acquitting 11 accused persons out of 14 accused persons who were charged to have committed the offences under Sections 302, 307 read with Sections 143, 144, 148 and 149 of the IPC. 2. The case of the prosecution is that the deceased Kanji Dhanji and the complainant Ramji Naran have come by scooter from Bhuj to Bibbar village and at the outskirts of the village in the dens bushes they have parked the scooter and were going towards the village on their feet. At that time all the accused persons who were 14 in number have committed an assault at 11.30 p.m. On 14.9.1998. It is alleged that all the accused with the weapons like axe, sticks, dharia and dhoka have caused injuries to the deceased Kanji and have also CR.A/245/2000 3/8 JUDGMENT caused serious injuries to complainant Ramji Naran with the weapons axe and sticks. The deceased Kanji died on the spot and complainant Ramji Naran when was removed to the hospital, he lodged the complaint and subsequently his dying declaration is also recorded. 3. On the appreciation of evidence the learned trial Judge convicted original accused Nos. 5 and 12 for they having inflicted injuries on the person of the deceased Kanji and accused No. 10 is attributed to the role of having caused injury by stick to the complainant and he is also with the aid of Section 149 of the IPC convicted to the same offence. 4. On the appreciation of evidence, it appears that on 10.9.1998 that Bavji Jadeja belonging to Lariya village was killed and upon such incident people of Darbar community have started pelting stones in Bibbar village and therefore the complainant and others who are belonging to Bhanushali community have to confine themselves in their respective houses. It is the case of the complainant that such pelting of stones was continued for three days and from the next day i.e. on 11.9.1998 the police bandobast was put in the village. Not finding appropriate sufficient people of Bhanushali community, deceased Kanji and complainant Ramji have proceeded to go on scooter to Bhuj on 14.9.1998 and as per the complainant's say they met the important persons of their community and taking those people they have given the representation to the D.S.P. And the Collector, Bhuj. The complainant says that at about 8.30 p.m. they started from Bhuj to come back on scooter and at late night when they reached Bibbar village, not finding their safety, they have parked the scooter in the dens CR.A/245/2000 4/8 JUDGMENT bushes at the outskirt of the village and when they proceeded on their feet towards the village, that they were attacked by the accused. The complainant says that he had torch in his hand and in the said torch light he found mob of 25 to 30 people with different weapons. The complainant alleges that Akheraj (accused No. 10) has caused him injury with stick but he does not specify the part of the body in his deposition. The complainant stated that Tugaji Velaji Jadeja (accused No. 12) and Ranaji (accused No. 5) and other persons in the mob have inflicted blows on the person of Kanji with weapons. The complainant had proceeded on the other direction shouting but then he fell down becoming unconscious and he regained conscious after he was removed to Bhuj hospital and then he lodged the complaint and gave his dying declaration. He also states that hearing his shouts one Bhimji, Chandulal, Parshottam and Dhayaram have come running to the place of incident. 5. Reading the entire deposition of the complainant and putting his complaint and dying declaration in juxtaposition it is not clear as to who has caused fatal injury on the head of the deceased. It is pertinent to mention that the deceased had only two injuries, namely, (i) L-shaped injury on the head with fracture and (ii) incise wound on the right elbow which is simple injury. The allegation of causing only injury on the head was attributable to either accused No. 5 Ranaji or accused No. 12 Tugaji but it is not clear as to who either of them had inflicted this blow particularly when there is complete darkness at the place of incident as is admitted by the witness and there was no street light at the village. CR.A/245/2000 5/8 JUDGMENT 6. Two other eye witness examined by the prosecution is Chandulal Dhanji (brother of the deceased) and Dhayaram Gopalji. Reading the evidence of Chandulal he has stated that after the incident, he was interrogated but neither his statement was recorded nor had he given any statement. He states that though the police was there immediately after the incident and though he was interrogated and posed himself to be the eye witness no statement is given by him about the incident. However, as per his admission he has given the statement on the next day between 4 p.m. and 5 p.m. He has not made any specific allegation against either accused No. 5 or accused No. 12 of having caused any injury to the deceased on head but on the contrary he has stated specifically that the deceased was surrounded by 20 to 25 persons and all were causing injuries from all four sides to the deceased. This evidence, therefore, either seems not to be the eye witness of the incident or that he exaggerated the story to such an extent which is not at all corroborated by the medical evidence particularly the injuries sustained by the deceased. Therefore, this witness is of no help to the prosecution. 7. This brings us another eye witness Dhayaram Exh. 46 who though posed himself to the eye witness, did not give his statement immediately after the incident. Surprisingly, he is taken as one of the panch witnesses of the inquest panchnama drawn between 0.30 a.m. and 1.15 a.m. on 15.11.1998. He is also taken as one of the panch witnesses of the scene of offence panchnama which is drawn between 6.00 a.m. and 6.30 p.m. On the same day. He is also taken as one of the panch witnesses in the arrest panchnama of the some of the accused drawn between 7 a.m. and 7.15 a.m. He is also CR.A/245/2000 6/8 JUDGMENT taken as one of the panch witnesses of the second panchnama of the scene of offence drawn between 7.30 a.m. and 8.00 a.m. This fact clearly shows that for whole night he was there with the police signing panchnamas one after other but did not narrate anything about the incident to the police. Only after 8.00 a.m. in the morning next day that his statement is recorded wherein he posed himself to be eye witness and made allegation against the accused. Thus, his evidence also cannot be relied on to base the conviction of the accused. 8. Thus, the only evidence which is available on record is that of the complainant. The complainant has received three injuries, namely, (i) skin deep incise wound on left ring finger; (ii) abrasion on left hand and (iii) pain on right knee. Beyond these, there are no injuries found on the person of the complainant. The third injury seems to be negligent but if the first two injuries on the person of the complainant are seen in reference to the medical certificate issued and the deposition of Dr Dilipkumar Exh. 79 it is clear that the nature of injury is simple and by such injuries he could not become unconscious. Be that as it may, the complainant cannot be said to have received any grievous hurt at the hand of accused No. 10 Akheraj. It has come on record that police bandobast was there in the village and as many as eight to ten police personnels were on duty and on night patrolling in the village. Statements of these police personnels have been recorded but none of them have been examined as the witness in the present case. Therefore, only relying on the complainant's version it is very risky to convict the accused persons for the offence punishable under Section 302 of the IPC with the aid of Section 149 of the IPC. Section 149 of IPC would even otherwise not be applicable CR.A/245/2000 7/8 JUDGMENT as three persons cannot form an unlawful assembly. As observed above, it is not clear that out of accused No. 5 or accused No. 12 who has caused injury on the head of the deceased which is only fatal injury. Applying, therefore, the principle of minimum liability the case has to be brought down to Section 326 of the IPC from Section 302 of the IPC. It is reported that accused No. 5 Ranaji has died during the pendency of the appeal. Therefore, the appeal abates qua appellant-accused No. 5. 9. In the aforesaid facts and circumstances of the case we deem it appropriate to quash and set aside the conviction of accused Nos. 10 and 12 for the offence punishable under Section 302, 307, 143, 144, 148 and 149 of the IPC and further deem it appropriate to convict original accused No. 12 Tugaji Velaji Jadeja for having committed the offence punishable under Section 326 of the IPC and reduce the sentence to already undergone as he is in jail for more than eight years. He is ordered to be set at liberty forthwith if not required in any other case. As far as original accused No. 10 Akheraji Kanji Jadeja is concerned, he is alleged to have caused simple injury to the complainant. He is convicted for having committed the offence punishable under Section 323 of IPC. We are told that he was in jail pending trial and pending appeal for total period of 4 to 5 months and was and is on bail pending trial and appeal and we deem it appropriate to sentence him to the period already undergone. His bail bond stands cancelled. With the above, the appeal filed by the appellants is partly allowed. As far as the Criminal Appeal filed by the State CR.A/245/2000 8/8 JUDGMENT against the acquittal of the accused is concerned, we do not find any substance in the appeal. Hence the State appeal is dismissed. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J)