CR.A/39719/1987 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 397 of 1987 With CRIMINAL APPEAL No. 409 of 1987 With CRIMINAL APPEAL No. 411 of 1987 With CRIMINAL APPEAL No. 636 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ========================================================= RANJIT JAGU & 2 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Cr. A. No. 397 of 1987 MR SAURIN A SHAH for Appellant(s) : 1 - 3. Ms. Meeta Panchal, APP, for Opponent(s) : 1, Cr. A. No. 409 of 1987 Mr. R.D. Raval for the appellants Ms. Meeta Panchal, APP, for the opponents Cr. A. No. 411 of 1987 Mr. R.K. Mishra for the appellants Ms. Meeta Panchal,APP, for the opponents CR.A/39719/1987 2/8 JUDGMENT Cr. A. No. 636 of 1987: Ms. Meeta Panchal, APP, for the appellant Mr. R.K. Mishra, ld. Advocate for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/07/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) All these appeals are filed against the judgement and order passed by the learned Additional Sessions Judge, Junagadh, on 27.5.1987 in Sessions Case No. 69 of 1984. The learned trial Judge has found eight accused persons to be guilty of offences under Section 332 read with Section 34 of the Indian Penal Code. Each accused persons- appellants herein, have been convicted and have been ordered to undergo sentence of two years each, with fine of Rs.500/- and in default whereof, each one has to undergo more than three months' sentence. For the offence under Sections 307 and 395 of the Indian Penal Code, they have been acquitted. However, they have been convicted for the offences under Sections 332, 34, 395 of the Indian Penal Code. The appellant- accused No. 8 has expired. Thus, proceedings in his regard are abated. Different appeals came to be preferred. Appellant Nos. 1 to 3 have preferred Criminal Appeal No.397 of 1987. CR.A/39719/1987 3/8 JUDGMENT Criminal Appeal No.409 of 1987 came to be preferred by the accused Nos. 5 and 8, whereas Criminal Appeal No.411 of 1987 appertains to accused Nos. 4,6 and 7. Accused Nos. 4 and 6 were of the minor age on the date of the incidence. The aforesaid criminal appeals have been preferred by the accused Nos. 1 to 8, who have challenged the judgment and order in question dated 27.5.1987, on the ground that the accused persons have been made victims of the political rivalry of Bhartiya Janta Party and that of Congress. 2. The accused hail from different communities, particularly Patel and Rajput. They have internal caste feud and internal village rivalry. There were no pre-plans, no motivation, no rivalry on the police personnel to those of the Mamlatdar and his staff, Visavadar. They had all collected to witness a religious film shown on Projector in the personal compound. It was an incidence of 18.4.1984. It was night hours of about 10.20 p.m. They had all collected for amusement of a religious film at their village Sarsai, Taluka Visavadar, District Junagadh. 3. It is alleged that the Mamlatdar has carried out a raid that a show was filmised without holding a licence for the purpose of cinema entertainment. There was a mob of persons from the village. All of sudden, the film was stopped and lights were put on. The accused persons with those of the other persons who were present, saw the police personnel with other officials. They had all collected there, they all gathered near the officials. The mob was asked to disburse. Some of whom had asked the reason of why they were abstracted from witnessing the movie, they all had paid CR.A/39719/1987 4/8 JUDGMENT money for amusement of witnessing the religious movie. 4. The police official and to those of the other officials present who raided the alleged cinema hall, felt annoyed and a false case against the appellants-accused persons came to be lodged, which was at the behest of the local people having internal rivalry, political affiliation and also officials felt annoyed of the query as to why the cinema was ordered to be stopped from being filmised the religious film for the entertainment of which they have paid money of Rs.2/-. Criminal Appeal No.636 of 1987 is a State appeal for enhancement of the punishment. 5. Accused Nos. 4 to 6 were minor on the date of the incidence. All the accused persons were on bail during the trial. The appellants have emphasized that they do not any antecedents. They do not have any involvement in any type of criminal case, even after the trial, which they withstood and as on date, there is no untoward criminal antecedent registered against them. 6. It has been submitted that the offence under Section 307 and 394 of the Indian Penal Code came to be dropped as no ingredients were found so as to constitute the said offence under the said sections of the Indian Penal Code. They all hail from down strata of the society. The depend upon the earnings as field workers, labourers, working in the fields of farmers in the village. They maintain dependents on their labour work working in the fields. 7. It has also been contended, as it substitutes from the CR.A/39719/1987 5/8 JUDGMENT observations of the learned Sessions Court, that the benefit under the Probation of Offenders Act may be given. Later portion of the judgment and order reveals the f act of this aspect of submission of letting off the sentence as it being the first offence and till date, no untoward incident of any criminal offence is with the police record against the accused- appellants. Therefore, all the learned advocates submitted that as the seriousness of the offence under Section 307 and 394 of the Indian Penal Code could not withstand, the offence of minor injuries under Section 332, read with Section 34 of the Indian Penal Code came to be proved and conviction is based for the offence under the said two sections of the Indian Penal Code. Therefore, all the learned advocates appearing for the appellants have earnestly submitted that the penalty may be enhanced, to be paid by each one of the accused- appellants, to a sum of Rs.50,000/- in all and the conviction of undergoing sentence of two years each may be set aside. 8. As the learned advocates for the appellants have also submitted that the incident is as old as of 18.4.1984, old by 24 years. The interest would be served if the Hon'ble Court sets aside the conviction of two years sentence to be undergone by enhancing the penalty to a sum of Rs.50,000/-, to be paid in proportion by each of the accused-appellants. 9. Therefore, while appreciating in entirety the incidence of 18.4.1984, when the village personnel collected to witness a religious firm show, wherein the accused-appellants were also present, the motive behind the alleged offence under Sections 332 read with Section 34 of the Indian Penal Code makes to believe the absence of ill-motivation, coercion, any CR.A/39719/1987 6/8 JUDGMENT preparation, enmity against the officials on duty by any of the accused persons. These aspects are absent in entirety. It gives rook to believe that all of sudden, the lights were put on and show was stopped, curiosity must have arisen to get collected around those officials present with police staff in the place of scene to know as to why the entertainment show came to be stopped, which submission gives to perceive the reason as to how the accused persons could assemble and came near and close to those officials and asking the reasons of stopping the show from among the persons assembled after the show came to be stopped. 10. Aforesaid gives the reasons to believe that the officials must have felt disturbed in the performance of their official duties which appears to be cause of taking accused persons in the custody, making the accused-appellants to withstand trial. Therefore, the request of the learned advocates for the accused-appellants that Criminal Appeal No.636 of 1987 preferred by the Government for enhancement of the sentence may be dismissed and the judgment and order in Criminal Case no.69 of 1984 rendered by the learned Sessions Judge, Junagadh be modified to the extent of enhancing the penalty to a sum of Rs.50,000/-, to be paid in proportion by each one of the accused-appellants. 11. The learned counsel for the State was though of the opinion that the case is pretty old one but then he said that it involves law enforcing agencies. Their work has been obstructed by the accused. Not only this but even physical harm has been caused to the raiding party. Therefore, they CR.A/39719/1987 7/8 JUDGMENT should be suitably dealt with. 12. We have considered the rival submissions and have given our thoughtful consideration to the facts of the case. What stands out prominently that it was a huge crowd. Mostly the accused are from one family, therefore, basis cannot be ruled out. 13. It is also noteworthy that out of the large number of people present, only PW 6 has been examined to support the prosecution case. This again weakens the case of the prosecution. 14. It is also noteworthy that Deputy Mamlatdar, who was on scene of occurrence has refused to specify the pontification of the accused. 15. Thus, there are weak links in the prosecution case. These links do not persuade us to accept the State appeal for enhancement of sentence. Thus, the State appeal, being Criminal Appeal No.636 of 1987, is dismissed. 16. Now, we take up the case of the appeal of the accused persons. The case being 24 years old and the largest substantive sentence has been two years, it would not be proper to send the accused behind the bars. Thus, we feel that the ends of justice would meet if the substantive sentence is reduced to the already undergone and sentence of fine is enhanced from Rs.500/- to Rs.6,500/- for all the accused. CR.A/39719/1987 8/8 JUDGMENT 17. In the result, the three appeals filed by the accused persons are partly allowed. The convictions are maintained. The substantive sentence is reduced to the period already undergone. Fine is of-course enhanced from Rs.500/- to Rs.6,500/- each accused. With the aforesaid modification in sentence, the appeals filed by the accused are partly allowed as indicated above. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) (pkn)