CR.A/1274/2004 1/29 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1274 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL 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 ? ============================================================== PARBATSINH SHIVSINH MAKWANA & 5 - Appellants Versus THE STATE OF GUJARAT - Respondent ============================================================== Appearance : MR KJ SHETHNA for Appellants. MR KT DAVE, ADDL.PUBLIC PROSECUTOR for Respondent-State ================================================================== CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 20/02/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the CR.A/1274/2004 2/29 JUDGMENT Code of Criminal Procedure, 1973, is directed against judgment dated March 12, 2004, rendered by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No.6, District : Kheda at Nadiad, in Special Case No.2 of 2002, by which six appellants are convicted for commission of offences punishable under Section 304 Part-II r.w.Section 149 of the I.P.C. as well as Section 325 r.w.Section 149 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and each sentenced to suffer R.I. for ten years and fine of Rs.1,000/-, in default, S.I. for six months, for commission of offence punishable under Section 304 Part-II r.w.section 149 IPC as well as R.I. for five years and fine of Rs.1,000/-, in default, S.I. for six months, for commission of offence punishable under Section 325 r.w.Section 149 IPC and R.I. for one year and fine of Rs. 1,000/-, in default, S.I. for three months, for commission of offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It may be mentioned that the learned Judge of the trial Court has directed that substantive sentences imposed on the appellants shall run concurrently, and that each appellant shall be entitled to benefit of set off as CR.A/1274/2004 3/29 JUDGMENT provided in Section 428 of the Code of Criminal Procedure, 1973. 2. The facts emerging from the record of the case are as under :- Ramabhai Punjabhai Vankar is a resident of village Dahevan, District : Kheda. He was in possession of Survey No.1167, admeasuring 2 Acres and 37 Gunthas situated in village Aberevpara. Initially, the said land was being cultivated by grandfather of Ramabhai and after death of his grandfather, the land was being cultivated by him. The appellant No.1 i.e. Parbatsinh Shivsinh Makwana had filed a suit in civil court against Ramabhai for possession of land bearing survey no.1167 situated at village Aberevpara. Ramabhai had taken up defence that he was a tenant under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 and, therefore, the Court had no jurisdiction to entertain the suit. The issue, whether Mr.Rameshbhai was tenant of Survey No.1167 or not, was referred for determination to Mamlatdar and Agricultural Lands Tribunal as required by Section 85-A of the Tenancy Act. The Mamlatdar and Agricultural Lands Tribunal held that Ramabhai was tenant of the land. Thereupon, the appellant No.1 preferred an appeal before CR.A/1274/2004 4/29 JUDGMENT the Prant Officer, which was also dismissed. The appellant No.1 thereupon approached Collector, Kheda, who also upheld contention of Ramabhai that he was tenant of Survey No.1167 of village Aberevpara. The case of the prosecution is that with reference to survey No.1167, disputes were going on between Ramabhai on one hand and the appellant No.1 on the other and, therefore, Ramabhai had filed police complaint against the appellant No.1 on July 11, 1996. According to the prosecution, after filing of the complaint, the appellant No.1 had grown crop of banana in the disputed land on July 17, 1996. Therefore, on July 20, 1996, Ramabhai had entered land bearing Survey No.1167 with deceased Natubhai Bhaijibhai Rohit, Maniben Premjibhai Vankar, Paniben Ishwarbhai Vankar, Kankuben, Dahiben Bhailalbhai, Natubhai Chhotubhai Vankar, who is nephew of Ramabhai etc. to remove weeds from the field. At about 10.30 a.m. Jayendrasinh Gulabsinh Parmar i.e. appellant No.3, Mukeshbhai Gulabsinh Parmar i.e. appellant No.4, Dineshbhai Gulabsinh Parmar i.e. appellant No.6, Rameshbhai alias Ramanbhai Parbatsinh Makwana i.e. appellant No.2, Shantaben i.e. original accused No.3, Daxaben i.e. original accused No.4, Parbatsinh Shivsinh Makwana i.e. appellant No.1 etc. had entered the disputed field with CR.A/1274/2004 5/29 JUDGMENT sticks in their hands. The appellant No.3 i.e. Jayendrasinh addressed Ramabhai as “Sala Dheda” and asked him as to why he was weeding the field belonging to appellant No.1. He also abused Ramabhai and gave stick blow on his head. Thereafter, the appellant No.2 i.e. Rameshbhai Parbatsinh and the appellant No.4 i.e. Mukeshhai Gulabsinh Parmar also caused injuries on his two legs by means of sticks, as a result of which he had fallen down. It is the case of the prosecution that original accused No.3 i.e. Shantaben Parbatsinh gave stick blow on back of Ramabhai. As Ramabhai was assaulted, he raised shouts for help. Therefore, deceased Natubhai Bhaijibhai Rohit, who was employed by Ramabhai, came to his rescue. This could not be tolerated by the appellants. Therefore, the appellant No.5 i.e. Janaksinh Gulabsinh Parmar and the appellant No.3 i.e. Jayedrasinh Gulabsinh Parmar gave stick blows on hands and legs of Natubhai Rohit, as a result of which, Natubhai fell down. Thereafter, all started beating Natubhai indiscriminately with their sticks. Meanwhile, one Bhagwansinh Somabhai intervened. As Natubhai was assaulted, other labourers employed by Ramabhai ran away. While leaving survey No.1167 of village Aberevpara, the appellants threatened Ramabhai with dire consequences. One Rahemubhai Harijan CR.A/1274/2004 6/29 JUDGMENT removed injured Ramabhai and injured Natubhai to Government Hospital, Karamsad in a tempo. Bhagwansinh Somabhai, who had attempted to intervene to save Ramabhai, lodged complaint against the appellants and others. On the basis of complaint of Bhagwansinh, offences were registered against the appellants and others. On July 22, 1996, Maheshbhai Babubhai Jadav and Premjibhai Koyabhai came with police at the hospital at about 9.00 p.m. to record statement of injured Ramabhai. During the course of treatment, injured Natubhai Bhaijibhai succumbed to his injuries and, therefore, offence punishable under Section 302 IPC was added to the complaint lodged by Bhagwansinh. The complaint lodged by Bhagwansinh was investigated by Police Inspector Mahendrasinh Kanubhai Padhiyar of Virsad Police Station. Regarding the incident in question, cross-complaint was also registered by Shantaben Parbatsinh, which was also registered at Virsad Police Station. Investigating Officer drew panchnama of place of offence and recorded statements of those persons, who were supposed to be conversant with the facts of the case. The investigating officer made arrangement for recording dying-declaration of injured Ramabhai and accordingly, Executive Magistrate recorded dying-declaration of injured Ramabhai. The CR.A/1274/2004 7/29 JUDGMENT investigating officer held inquest on the dead body of deceased Natubhai and made arrangement for sending the same for postmortem examination. Meanwhile, D.S.P. Anand handed over investigation of the case to Divisional Police Officer, Petlad and, therefore, P.I. Mr.Padhiyar handed over investigation of the case to Divisional Police Officer, Petlad. Certain incriminating articles were seized during the course of investigation. They were sent to Forensic Science Laboratory for analysis. On completion of investigation, the appellants and two others i.e. Ms.Shantaben, wife of Parbatsinh Shivsinh and Ms.Daxaben, daughter of Parbatsinh Shivsinh were chargesheeted in the Court of learned Special Judge, Nadiad, for commission of offences punishable under Sections 147, 148, 149, 302, 307, 324, 504, 506(2) IPC and Sections 3(1)(x) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of which Sessions Case No.121 of 1996 was registered against the appellants and two others. On service of summons, the accused appeared. The learned Additional Sessions Judge, Kheda at Nadiad, to whom the case was made over for trial, framed necessary charge against the appellants and others at Exh.8. It was read over and explained to them. They pleaded not guilty to CR.A/1274/2004 8/29 JUDGMENT the same and claimed to be tried. The prosecution, therefore, examined (1) Advocate Sanjaykumar Chhaganbhai Makwana as PW.1 at Exh.19, (2) Maganbhai Shanabhai Chavda as PW.2 at Exh.27, (3) Ranchhodbhai Lallubhai as PW.3 at Exh.33, (4) Bipinbhai Dhulabhai as PW.4 at Exh.34, (5) Bhikhabhai Ramsinh as PW.5 at Exh.36, (6) Punjabhai Ramsinh as PW.6 at Exh.37, (7) Mahijibhai Bhagwansinh as PW.7 at Exh.39, and (8) Dhanjibhai Devjibhai as PW.8 at Exh.40. The prosecution also produced documentary evidence, such as, panchnama of place of incident at Exh.20 etc. Thereafter, it was pointed out to the Court that as the accused were also prosecuted for commission of offences punishable under the provisions of the Indian Penal Code, chargesheet should have been submitted in the Court of learned Judicial Magistrate, First Class, Borsad and after committal of the case to the Sessions Court, trial should have been commenced. Therefore, by an order dated April 18, 2001, the case was remanded to the Court of learned J.M.F.C. Borsad to pass appropriate order of committal as required by Section 209 of the Code. The investigating officer submitted chargesheet in the Court of learned J.M.F.C.Borsad on December 14, 2001, on the basis of which, Criminal Case No.3116 of 2001 was registered against the appellants and others in the said CR.A/1274/2004 9/29 JUDGMENT Court. The learned Magistrate committed the case to Sessions Court for trial vide order dated January 3, 2002, on the basis of which Special (Atrocity) Case No.2 of 2002 was registered against the appellants and others. The learned Additional Sessions Judge, Fast Track Court No.6, Kheda at Nadiad framed necessary charge against the appellants and others at Exh.7. It was read over and explained to them. They pleaded not guilty to the same and claimed to be tried. The witnesses examined earlier were not re-examined and were treated to have been examined with reference to Special (Atrocity) Case No.2 of 2002. The prosecution further examined (1) injured eye witness Ramabhai Punjabhai Vankar as PW.9 at Exh.37, (2) eye witness Natubhai Chhotubhai Vankar i.e. Nephew of Ramabhai Punjabhai, as PW.10 at Exh.40, (3) Dhulabhai Sarjubhai as PW.11 at Exh.41, (4) Chunibhai Mangalbhai as PW.12 at Exh.42, (5) Mebubkha Imamkha as PW.13 at Exh.50, (6) Medical Officer Mr.Mayurbhai Motilal as PW.14 at Exh.54, (7) Shaileshbhai Maganbhai Katara as PW.15 at Exh.70, and (8) investigating officer Mahendrasinh Kanubhai Padhiyar as PW.16 at Exh.72, to prove its case against the appellants and others. The prosecution also produced documentary evidence, such as, 7/12 Extract of Survey No.1167 at Exh.38, map of place of incident CR.A/1274/2004 10/29 JUDGMENT prepared by witness Chunibhai Mangalbhai at Exh.46, report of PSI, Virsad to register the offence at Exh.51, necessary extract from station-diary at Exh.52, postmortem report of deceased Natubhai Bhaijibhai at Exh.56, certificate indicating injuries sustained by injured Ramjibhai and issued by Dr.Mayurbhai/ Dr.Mayurbhai at Exh.57, medical papers of deceased Natubhai at Exhs.58, 59, 60 & 61, certificate of injuries sustained by Ramjibhai at Exh.68, complaint lodged by Bhagwansinh Somabhai at Exh.73, report of F.S.L. at Exh.76 etc. in support of its case against the appellants and others. 3. After recording of evidence of prosecution witnesses was over, the learned Judge of the trial Court explained to the appellants and others 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 his further statement, each accused claimed that he was innocent. The appellant No.1, in answer to last question put by the Court, sought permission of the Court to file written-statement. The said permission was granted and accordingly, the appellant No.1 filed written-statement CR.A/1274/2004 11/29 JUDGMENT at Exh.79. In his written-statement, the appellant No.1 claimed that before incident, he had sustained injuries on his hand and as his hand was plastered, it was not possible for him to cause injuries to any one. It was mentioned by the appellant No.1 that in view of inconsistencies regarding injuries sustained by the deceased and the injured, the accused should be acquitted. It was further stated in the written-statement that to prove that either the deceased or the injured had sustained fracture, no x'ray plate was produced by the prosecution and, therefore, no commission of offence punishable either under Section 325 or 326 IPC was made out. According to the appellant No.1, the complainant and his witnesses had committed criminal trespass into the disputed land and, therefore, right of private-defence of property was available to him and others. It was further mentioned in the written-statement that names of two women accused i.e. Shantaben – wife of Parbatsinh, and Daxaben – daughter of Parbatsinh were not mentioned in the complaint at all and that they were falsely implicated in the case. By filing written-statement, the appellant No.1 requested the Court to acquit all the accused. The written-statement filed by the appellant No.1 was adopted by rest of the accused. However, it is CR.A/1274/2004 12/29 JUDGMENT relevant to notice that no defence evidence was adduced by any of the accused to substantiate what was claimed by the appellant No.1 in his written-statement. 4. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that the appellants had formed an unlawful assembly on July 20, 1996, common object of which was to cause injuries to injured Ramabhai Punjabhai and others, who were attempting to weed and in prosecution of said object, caused injuries to injured Ramabhai and others and, therefore, they were liable to be convicted for commission of offences punishable under Sections 147, 148, 149 IPC. According to the learned Judge, it was proved by the prosecution beyond reasonable doubt that the appellant No.1 had intentionally insulted and intimidated with intent to humiliate injured Ramabhai, who was a member of scheduled caste, in a place within public view and, therefore, was liable to be convicted for commission of offences punishable under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 of I.P.C. The learned Judge further held that it was CR.A/1274/2004 13/29 JUDGMENT proved by the prosecution beyond pale of doubt that the appellants had committed culpable homicidal not amounting to murder and the acts of causing injuries to deceased Natubhai was committed with knowledge that they were likely to cause his death and, therefore, the appellants were liable to be convicted for commission of offence punishable under Section 304 Part-II read with Section 149 IPC. The learned Judge noticed medical evidence on record and held that for causing injuries to injured Ramabhai, the appellants were liable to be convicted for commission of offence punishable under Section 325 read with section 149 of I.P.C. In view of abovereferredto conclusions, the learned Judge has convicted the appellants for commission of offence punishable under Section 304 Part-II r.w.section 149 IPC, section 325 r.w.section 149 IPC and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and imposed sentences referred to earlier vide judgment dated March 12, 2004, giving rise to above- numbered appeal. It may be stated that by the judgment impugned in this appeal, the learned Judge has acquitted original accused No.3-Shantaben, who is wife of Parbatsinh i.e. the appellant No.1 and original accused No.4-Daxaben, who is daughter of Parbatsinh i.e.the CR.A/1274/2004 14/29 JUDGMENT appellant No.1, and that their acquittal is not challenged by the State Government by filing an acquittal appeal. Thus, their acquittal has become final. It further needs to be mentioned that Sessions Case No.60 of 1999, which was registered against injured Ramabhai and five others, on the basis of complaint lodged by Ms.Daxaben, daughter of Parbatsinh, was also tried by the same learned Judge and is disposed of by the learned Judge vide common judgment dated March 12, 2004, rendered in Sessions Case No.60 of 1999 and Special (Atrocity) Case No.2 of 2002. The learned Additional Sessions Judge has acquitted all the accused in Sessions Case No.60 of 1999 and acquittal of accused in the said Sessions Case is also not challenged by the State Government by filing separate acquittal appeal. 5. Mr. K.J.Shethna, learned counsel of the appellants contended that a free-fight had taken place between the group belonging to the appellant No.1 on one hand and the group belonging to injured Ramabhai, as a result of which, the learned Judge of the trial Court was not justified in invoking the provisions of Section 149 of IPC to the facts of the case at all. According to the learned counsel of the appellants, there were serious CR.A/1274/2004 15/29 JUDGMENT disputes about possession of land bearing survey No.1167 and as the appellants had acted in self-defence of property, they should have been acquitted. The learned counsel maintained that even if the Court comes to the conclusion that provisions of Section 149 IPC are attracted to the facts of the present case, medical evidence on record does not indicate that deceased Natubhai had either suffered dislocation or fracture, nor the medical evidence shows that he had received any injury on any of his vital organs and, therefore, the appellants should not have been convicted for commission of offence punishable under Section 304 Part-II r.w.section 149 IPC, but, at the best, could have been convicted for commission of offence punishable under Section 325 r.w.section 149 IPC. Mr.Shethna, learned Senior Advocate, maintained that in any view of the matter, sentence imposed on the appellants is very harsh and, therefore, the same should be reduced suitably by allowing the appeal. 6. Mr.K.T.Dave, learned A.P.P. for the State, contended that reliable testimony of injured Ramabhai establishes beyond reasonable doubt that when Ramabhai, with his men, was weeding the field, at that time the appellants had CR.A/1274/2004 16/29 JUDGMENT entered with sticks and mounted assault on injured Ramabhai, and when deceased Natubhai had intervened to save injured Ramabhai from being beaten, deceased Natubhai was made target and assaulted, as a result of which, conviction of the appellants under Section 304 Part-II r.w.section 149 IPC should not be regarded as erroneous. The learned counsel asserted that medical officer has specifically stated that injuries sustained by the deceased were sufficient to cause death of deceased Natubhai and, therefore, conviction of the appellants under Section 304 Part-II r.w.section 149 IPC should be upheld by the Court. The learned counsel further argued that having regard to the manner in which the incident had taken place, it is difficult to uphold the case of the appellants that they had acted while defending their property and, therefore, the plea that they are entitled to acquittal should not be accepted. The learned counsel for the State argued that cogent and convincing reasons have been assigned by the learned Judge of the trial Court for recording conviction of the appellants under Section 304 Part-II r.w.section 149 IPC and Section 325 r.w.section 149 I.P.C. as well as Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and as the learned CR.A/1274/2004 17/29 JUDGMENT counsel of the appellants has failed to dislodge those weighty reasons, the appeal, which has no merits, should be dismissed. 7. This Court has heard Mr.K.J.Shethna, learned Senior Advocate of the appellants, and Mr.K.T.Dave, learned A.P.P. 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 as well as the entire evidence on record with reference to broad and reasonable probabilities of the case. 8. The fact that deceased Natubhai died a homicidal death is not disputed by the learned counsel of the appellants before this Court. The testimony of medical officer Mr.Mayurbhai Motilal, recorded at Exh.54, shows that on July 20, 1996, he was discharging duties as medical officer of Shree-Krishna Hospital, Karamsad and that dead-body of deceased Natubhai was brought before him for postmortem examination. The medical officer has stated before the Court that postmortem examination of dead body of the deceased was conducted by a panel of doctors, which consisted of himself and Dr.Prasanna. The medical officer has enumerated external as well as CR.A/1274/2004 18/29 JUDGMENT internal injuries, which were noticed by him while performing postmortem examination. The doctor has maintained before the Court that injuries sustained by the deceased were sufficient to cause his death. In his cross-examination, it was admitted by the medical officer that the deceased had not sustained any injury on vital parts of his body, such as, brain, heart, kidney etc. It was also admitted by him that he had not noticed dislocation of any organ or fracture on the deceased. The injuries, which are enumerated by the medical officer Mr.Mayurbhai in his substantive evidence before the Court are also mentioned in detail in postmortem notes of the deceased produced by the prosecution at Exh.56. As per the medical evidence, deceased died because of shock and haemorrhage. It is nobody's case that injuries, which were noticed by Dr.Mayurbhai while performing postmortem examination of the deceased were self-inflicted or were received by deceased Natubhai in an accident. Thus, the finding recorded by the learned Judge of the trial Court that it is absolutely proved by the prosecution that deceased Natubhai died a homicidal death, is found to be eminently just and is hereby upheld. 9. The plea that the provisions of Section 149 of the CR.A/1274/2004 19/29 JUDGMENT Indian Penal Code are not attracted to the facts of the case and criminal liability of each appellant should be ascertained having regard to individual role attributed to him by the prosecution, cannot be accepted. The reliable testimony of injured Ramabhai shows that on July 20, 1996, he in the company of the deceased and others had started weeding the field in question. It may be mentioned that though there were serious disputes about possession of survey No.1167 of village Aberevpara, injured Ramabhai had succeeded all throughout in establishing his case of tenancy. However, as mentioned by injured Ramabhai, the appellant No.1 and others had trespassed into survey no.1167 and sown crop of banana which was sought to be weeded out. At that point of time, the appellants and others had entered the field with sticks and mounted attack on injured Ramabhai. The evidence further shows that deceased Natubhai, who was employed by injured Ramabhai, had attempted to save the deceased and at that time, the deceased was assaulted. The evidence on record and more particularly, that of injured Ramabhai and eye witness Nathubhai Chhotubhai Vankar recorded at Exh.40, makes it very clear that the appellants had entered the field with sticks and assaulted injured Ramabhai as well as deceased Natubhai. CR.A/1274/2004 20/29 JUDGMENT Section 141 IPC, inter alia, provides that an assembly of five or more persons is designated as `unlawful assembly', if the common object of the persons composing that assembly is to commit any mischief or criminal trespass or other offence, or by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, and to enforce any right or supposed right. The object of the appellants, who had formed an unlawful assembly, was to commit criminal trespass and/or other offence against injured Ramabhai and others and to take or obtain possession of any property by means of criminal force, or show of criminal force, and therefore, the assembly of the appellants will have to be designated as an `unlawful assembly'. 10. The next important question is as to what would be the nature of offence really committed by the appellants. Injured Ramabhai, in his testimony before the Court, has stated that when an attempt to weed the field was made, all the appellants had entered together with sticks and the appellant No.2 i.e. Rameshbhai as well as appellant No.4