IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.833 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE S.R.BRAHMBHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PATEL BABULAL RAMDAS & ANR. Versus THE STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 833 of 2005 MR YF MEHTA with MR AM PAREKH for Appellants MR HL JANI, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE S.R.BRAHMBHATT Date of decision: 12/05/2005 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Admitted. Mr.H.L.Jani, learned Additional Public Prosecutor, waives service of notice on behalf of the respondent. This appeal was heard on different dates as is evident from order-sheet and having heard it finally today, it is proposed to be disposed of by this judgment. 2. By filling instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short), the appellants, who are original accused Nos.2 & 4, have challenged judgment dated April 8, 2005 rendered by the learned Additional Sessions Judge, 4th Fast Track Court, Patan, in Sessions Case No.143 of 2002 by which they have been convicted under Section 307 read with 149 as well as Section 323 read with 149 of Indian Penal Code ("IPC" for short), and each sentenced to suffer R.I. for ten years and fine of Rs.10,000=00, in default R.I. for two years, for commission of offence punishable under Section 307 read with 149 IPC as well as R.I. for one year and fine of Rs.1,000=00, in default R.I. for three months, for commission of offence punishable under Section 323 read with 149 IPC. 3. The facts emerging from the record of the case are as under: Anandi, who is daughter of Lalbhai - elder brother of complainant Rameshbhai, had gone to field for the purpose of collecting fodder. At that time, the original accused No.29, i.e. Bhailalbhai Babaldas, had given stick blow on her head. Therefore, a complaint was filed against Bhailalbhai Babaldas regarding the said incident. Filing of complaint against accused Bhailalbhai Babaldas had annoyed the appellants and others. The incident in question took place on September 22, 1995. On the day of incident, complainant Rameshbhai Balchandbhai and his elder brother Lalbhai were returning home from their orchard in the morning. When they reached open square near Dudh-Mandli, they found the appellants and other accused lying in wait, armed with different weapons. On sighting the complainant, the members of unlawful assembly started raising shouts to assault and kill the complainant. The case of the complainant is that Govindbhai Patel, i.e. accused No.1, gave axe blow on the head of the complainant whereas Hargovanbhai Patel, i.e. accused No.8, gave axe blow on his right hand. Further, Chhanabhai Kanjibhai, i.e. original accused No.4 - appellant No.2 herein, as well as Bhailalbhai Babaldas, i.e. original accused No.29, and Dipakbhai Shivrambhai, i.e. original accused No.21, delivered blows with their respective sticks on left hand of the complainant. As the complainant was assaulted, he raised shouts to save him. Thereupon, his elder brother Lalbhai attempted to rescue him. The original accused No.18, i.e. Shambhudas Hirdas, caused injury with stick on right hand wrist of Lalbhai and the original accused No.8, i.e. Hargovandas Hirdas, caused injury on left hand of Lalbhai with a stick whereas the original accused No.4, i.e. the appellant No.1 herein Chhanabhai Kanjidas, caused injury on right hand elbow of Lalbhai and original accused No.9, i.e. Shankerbhai Ramdas, and original accused No.17, i.e. Babubhai Kanjibhai, caused injury with stick on waist of Lalbhai whereas original accused No.19, i.e. Shivram Ramchandbhai, and original accused No.11, i.e. Dahyabhai Hirdas, caused injury by stick on left hand of Lalbhai. As both the brothers were assaulted by several persons with their respective weapons, they raised shouts for help. Thereupon, witness Vithaldas Babaldas Patel went to the rescue of two brothers. Vithalbhai was assaulted by the original accused No.2, i.e. Babubhai Ramdasbhai the appellant No.1 herein, with an axe and an injury was caused on his head. The appellant No.2 herein, i.e. original accused No.4, caused injury on right hand of Vithalbhai by means of a stick whereas original accused No.28, i.e. Bhailalbhai Babaldas, and original accused No.21 Dipakbhai Shivramdas caused injury on left hand of Vithalbhai by delivering stick blows and original accused No.10, i.e. Chaturbhai Prahladbhai, assaulted witness Vithalbhai with a dharia, which injured little finger of his right hand. On commotion being raised, complainant's sister-in-law Dahiben and niece Anandi as well as Champaben, sister of injured Vithalbhai, also came to their rescue, but they were also beaten with sticks. Witness Dahiben Lalbhai was given two stick blows on her waist by original accused No.11, i.e. Dahyabhai Hirdas, whereas original accused No.20, i.e. Bhailalbhai Manilal, also assaulted her with stick. Witness Champaben Babaldas, who is sister of injured Vithalbhai, was caused injury on her left hand wrist by original accused No.18 Shambhubhai Hirabhai by means of a stick whereas Anandiben Laljibhai, who is niece of complainant Rameshbhai and daughter of injured Lalbhai was caused injury on both her thighs with sticks by original accused No.29, i.e. Patel Bhailalbhai Babaldas, and original accused No.21, i.e. Dipakbhai Shivram. The complainant was so scared that he took shelter in slop of one Babubhai Laljibhai. On commotion taking place, village people rushed to the scene of offence and only thereafter, the accused left the place of incident. The complainant and other injured were removed to Government Hospital, Bechraji, for treatment. At Bechraji Hospital, complaint of complainant Rameshbhai was recorded. As the complainant and his brother Lalbhai as well as Vithalbhai received serious injuries, they were removed to Mehsana Government Hospital for better treatment. The complaint lodged by Rameshbhai was duly investigated by Mr.A.J.Gondaliya, who was then Police Sub Inspector of Bechraji Police Station. After necessary investigation, the appellants and other twenty-nine accused were chargesheeted in the Court of learned Judicial Magistrate First Class, Chansma, for commission of offences punishable under Sections 307, 323 read with 149 IPC etc. As the offence punishable under Section 307 IPC is exclusively triable by a Court of Sessions, the case was committed to the Sessions Court, Patan, for trial where it was numbered as Sessions Case No.143 of 2002. 4. The learned Additional Sessions Judge to whom the case was made over for trial, framed necessary charge against the accused. 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) complainant Rameshbhai Balchanddas Patel as P.W.-1 at Exh.52; (2) injured Lalchandbhai Balchanddas Patel as P.W.-2 at Exh.56; (3) injured Vithalbhai Babaldas Patel as P.W.-3 at Exh.58; (4) injured Anandiben Laljibhai Patel as P.W.-4 at Exh.60; (5) injured Dahiben Lalbhai Patel as P.W.-5 at Exh.61; (6) injured Champaben Babaldas Patel as P.W.-6 at Exh.62; (7) Mahendrakumar Laljibhai Patel as P.W.-7 at Exh.65; (8) Babubhai Maljibhai Patel as P.W.-8 at Exh.66; (9) Keshavlal Cheldas Patel as P.W.-9 at Exh.67; (10) Karshanbhai Chhaganbhai Patel as P.W.-10 at Exh.71; (11) Rameshbhai Shambhudas Patel as P.W.-11 at Exh.79; (12) Vithlbhai Narandas Patel as P.W.-12 at Exh.83; (13) Medical Officer Dr.Pravinkumar Popatlal Soni as P.W.-13 at Exh.89; (14) Tursangji Gopalji as P.W.-14 at Exh.95; (15) Satishkumar Jayantilal as P.W.-15 at Exh.97; (16) Bhanuprasad Shivram Joshi as P.W.-16 at Exh.99; (17) Medial Officer Shobhaben Madanlal Gupta as P.W.-17 at Exh.101; (18) Ashwinkumar Jamnadas Gondaliya as P.W.-18 at Exh.122; (19) Narpatsinh Dolatsinh Jetavat as P.W.-19 at Exh.138; and, (20) Chandulal Tribhovandas Panchal as P.W.-20 at Exh.139, to prove its case against the accused. The prosecution also produced documentary evidence such as panchnama of place of incident at Exh.68; panchnama regarding seizure of clothes of the complainant and the witnesses at Exh.78; panchnamas indicating recovery of weapons at Exhs.80, 96 & 98; certificate indicating injury sustained by Rameshbhai Balchanddas at Exh.90; certificate indicating injury sustained by Vithalbhai Babaldas at Exh.91; certificate indicating injury sustained by Laljibhai Balchandbhai at Exh.92; certificate indicating injury sustained by Anandiben Laljibhai at Exh.93; certificate indicating injury sustained by Champaben Babaldas at Exh.94; x-ray plates at Exhs.104 to 109; extract from Station Diary maintained at Bechraji Police Station at Exh.123; etc. in support of its case against the accused. 5. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In their further statements, the case of each accused was that of total denial. No defence evidence was adduced by any of the accused. 6. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution that at 7.00 a.m. on September 22, 1995, the accused Nos.1, 2, 4, 5, 7, 9, 10, 11, 15, 17, 18, 19, 20, 21, 23, 28 and 29 had formed an unlawful assembly common object of which was to attempt murder of complainant Rameshbhai as well as to cause injuries to the witnesses and in prosecution of the common object, the members of unlawful assembly had caused injuries to the complainant and witnesses, who had attempted to rescue the complainant, as a result of which, commission of offences punishable under Section 307 r.w. 149 IPC as well as Section 323 r.w. 149 IPC is established. The learned Judge thereafter heard the accused and their counsels on the question of sentence and has imposed sentences on them which are referred to earlier vide judgment dated April 8, 2005, giving rise to instant appeal. 7. Mr.Yogesh F.Mehta, learned counsel of the appellants, contended that except the complainant, presence of the appellants at the time of incident is not referred to by other injured witnesses at all and, therefore, the learned Judge of the trial Court was not justified in coming to the conclusion that the appellants were members of the unlawful assembly. The learned counsel emphasised that even if the Court comes to conclusion that the appellants were members of unlawful assembly, there is no evidence on record to establish that commission of offence was such which the appellants as the members of that assembly knew was likely to be committed in prosecution of common object and, therefore, invocation of Section 149 IPC to the facts and circumstances of the case is erroneous. According to the learned counsel of the appellants, what is alleged by the complainant is that the appellant No.2 had given blow with stick on his left hand, but that would not show that the appellant No.2 had made attempt to murder him and, therefore, conviction of the appellant No.2 under Section 307 r.w. 149 IPC deserves to be set aside. The learned counsel of the appellants pointed out that in absence of intention and knowledge, which are necessary ingredients of Section 307 IPC, there cannot be an attempt to commit offence of murder and, therefore, the impugned judgment deserves to be set aside. What was asserted was that the learned Judge of the trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be accepted. In the alternative, it was argued that in any view of the matter, imposition of R.I. for ten years for commission of offence punishable under Section 307 r.w. 149 IPC is not warranted at all and, therefore, the same should be reduced to R.I. for five years. In support of the contentions advanced at the Bar, the learned counsel of the appellant has placed reliance on decisions rendered in (1) Anil Rai v. State of Bihar, A.I.R. 2001 SC 3173; and (2) Parshuram Pande & Ors. v. State of Bihar, A.I.R. 2004 SC 5068. 8. Mr.H.L.Jani, learned Additional Public Prosecutor for the State, contended that the testimony of complainant, which is truthful and trustworthy, indicates that the appellants and others had formed an unlawful assembly, common object of which was to cause murder of the complainant and in prosecution thereof, the complainant was assaulted by the appellants, as a result of which, conviction of the appellants under Section 307 r.w. 149 IPC cannot be regarded as erroneous. It was pleaded that the evidence on record clinchingly establishes that all the accused armed with different weapons were lying in wait for the complainant and had assaulted him on sighting him. It was further pointed out that the complainant was injured on his head and different parts of the body, and the appellants had even not spared those who had attempted to rescue the complainant as a result of which the trial Court was justified in coming to the conclusion that common object of members of the unlawful assembly was to attempt murder of the complainant. The learned Additional Public Prosecutor for the State drew attention of the Court to the decision of the Supreme Court in State of Maharashtra v. Balram Bama Patil & Ors., A.I.R. 1983 SC 305, and contended that to justify conviction under Section 307, it is not essential that bodily injury capable of causing death, should have been inflicted and, therefore, the plea that the appellant No.2 had caused injury on hand of the complainant is of no avail. The learned counsel for the State contended that the testimony of injured complainant gets complete corroboration from medical evidence on record as well as evidence of other injured witnesses and, therefore, well-reasoned conviction should be upheld by this Court. The learned counsel for the State further argued that cogent and convincing reasons have been given for imposition of R.I. for ten years for commission of offence punishable under Section 307 read with 149 IPC and as no ground is made out by the learned counsel of the appellants to interfere with the impugned judgment, the appeal, which lacks merits, should be dismissed. 9. This Court has heard Mr.Yogesh F.Mehta, learned counsel of the appellants, as well as Mr.H.L.Jani, 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 evidence on record produced by the learned counsel of the appellants for scrutiny of this Court with reference to broad and reasonable probabilities of the case. 10. As noticed earlier, in order to prove its charge, the prosecution has relied upon the testimony of witness Rameshbhai Balchanddas, recorded at Exh.52. This witness in his testimony has stated that the incident had taken place on September 22, 1995. According to him, at about 7.00 in the morning, he was returning home with his elder brother Lalbhai. The witness has stated that when they reached open square near Dudh-Mandli, he found all the accused present armed with different weapons. The witness has stated that accused No.1 Govindbhai Kantibhai gave blow with an axe on his head whereas accused No.8 Hargovanbhai Hirdas caused injuries to him on his hand with an axe and accused No.4, i.e. the appellant No.2 herein - Chhanabhai Kanjibhai, gave blow with stick on his left hand whereas accused No.29 Bhailalbhai Babaldas and accused No.21 Dipakbhai Shivramdas also caused injuries to him on his left hand by means of their sticks. The witness has further stated that thereafter, his brother Lalbhai had come to his rescue, but the accused beat his elder brother also. Elaborating the same, the witness has stated that Shambhubhai Hirdas, i.e. accused No.18, gave stick blow on right hand wrist of his brother whereas accused Hargovanbhai gave stick blow on left hand of his brother and accused Chhanabhai Kanjibhai, i.e. accused No.4 - the appellant No.2 herein, gave blow on right hand elbow of his brother and accused Shankerbhai Ramdas, i.e. accused No.9, and accused Babubhai Kantibhai, i.e. accused No.17, also gave blow with sticks on waist of his brother. It is further asserted by this witness that thereafter, accused Dahyabhai Hirdas, i.e. accused No.11, and Shivabhai Ramchandbhai, i.e. accused No.19, gave stick blow on left hand elbow of his brother. According to this witness, on assault being mounted on him and his brother, they raised shouts and, therefore, Vithalbhai came to their rescue, but accused Babubhai Ramdas, i.e. original accused No.2 - the appellant No.1 herein, caused injuries to Vithalbhai by means of an axe whereas accused Chhanabhai Kanjibhai, i.e. original accused No.4 - the appellant No.2 herein, gave stick blow on right hand of Vithalbhai. It is also stated by the witness that thereafter, Vithalbhai was assaulted by Bhailalbhai, i.e. original accused No.28, and Dipakbhai Ramdasbhai, i.e. original accused No.21, by means of sticks whereas accused Chaturbhai, i.e. original accused No.10, caused injury on right hand palm of Vithalbhai by means of an axe. The witness has further stated that on hearing their shouts, his sister-in-law Dahiben, i.e. wife of his brother Lalbhai, and his niece Anandi as well as Champaben Babaldas, i.e. sister of injured Vithalbhai, also came to their rescue, but his sister-in-law Dahiben, niece Anandiben and Champaben were assaulted by stick and injured. What is mentioned by the witness is that on receiving injury, he himself, Vithalbhai and Lalbhai fell down and, thereafter, all the accused dispersed. According to this witness, the motive for commission of crime was that Anandiben who is daughter of his elder brother Lalbhai, was assaulted by accused No.29 Bhailalbhai with stick on her head as a result of which, a complaint was filed and, therefore, to take revenge, they were assaulted. 10.1 In his cross-examination, the witness has denied the suggestion made by the defence that before lodging complaint, he took assistance of Mr.D.R.Patel, who was appointed as Dy.S.P.. The suggestion made by the defence that the complaint was lodged by him in consultation with his two brothers, is also denied by him. The suggestion made by the defence that the names of the accused were disclosed after deliberations, is also denied by him. The suggestion made by the defence that he was not knowing as to who caused injury to him, but gave the names of the accused out of enmity is also denied by him. Certain minor omissions have been brought on record with reference to his complaint, which are found in paragraph 3 of his cross-examination. In his cross-examination also, the witness has maintained that he saw the accused waiting to assault him from a distance of 10 feet. The suggestion made by the defence that along with accused, there were forty to fifty persons, is denied by the witness. In his cross-examination also, the witness has mentioned that on sighting him, immediately assault was mounted on him by the members of unlawful assembly. During the cross-examination, it was explained by the witness that he sustained injuries on five different parts of his person. It is also maintained by this witness in his cross-examination that Vithalbhai came to his rescue within two minutes of raising shouts by him. 10.2 This is all what transpires from the testimony of complainant Rameshbhai. On reappreciation of evidence of complainant Rameshbhai, this Court finds that he has tendered evidence in normal manner without making noticeable improvements and/or embellishments. Though this witness has been cross-examined at length, nothing could be brought on record so as to impeach his credibility. The witness knows the accused. Therefore, mistake in identifying the appellants and others as his assaulters and also assaulters of injured witnesses stand totally ruled out. It could not be brought on record that this witness was on inimical terms with any of the accused. It is relevant to notice that the witness has sustained several injuries. Therefore, his presence at the place of incident can hardly be doubted. Normally, an injured would not allow the real culprit to go scot-free and involve innocent persons falsely in a serious offence without motive. The testimony of this witness gets complete corroboration from the medical evidence of Dr.Pravinkumar Popatlal Soni, which is recorded at Exh.89. The Doctor in his substantive evidence before the Court has stated that he examined complainant Rameshbhai Patel on September 22, 1995 at 7.40 a.m. and found five injuries on him. The Medical Officer in his testimony has, in no uncertain terms, stated that injuries sustained by the complainant were possible by hard and blunt substance. Further, this witness stands corroborated by evidence of other injured witness. Under the circumstances, the learned Judge of the trial Court, who had advantage of observing demeanour of the witnesses, did not commit any error in placing reliance on the testimony of complainant Rameshbhai while determining guilt or otherwise of the appellants and others. 11. Though this Court does not propose to reproduce evidence of other injured witnesses in great detail, it would be worthwhile to notice essential features emerging from their evidence. Injured witness Lalchandbhai Balchanddas Patel examined at Exh.56 has stated that when he in the company of his brother Rameshbhai was returning home at 7.00 a.m. on September 22, 1995, he and his brother were assaulted by the accused. The witness has mentioned in his testimony that accused No.1, i.e. Govindbhai Kantibhai, gave axe blow on head of his brother Rameshbhai, and accused No.8, i.e. Hargovanbhai Hirdas, gave blow with an axe on right hand of his brother. It is further stated by the witness that accused No.4, i.e. the appellant No.2 herein Chhanabhai, accused No.29, i.e. Bhailalbhai Babaldas, and accused No.21, i.e. Dipakbhai Shivram, gave stick blows on left hand of his brother. It is further stated by this witness that accused No.18, i.e. Shambhubhai Hirdas Patel, gave stick blow on his right hand palm whereas accused No.4, the appellant No.2 herein Chhanabhai Kanjibhai, accused No.21, i.e. Bhailalbhai Babaldas, and accused No.21 Dipak Shivram gave stick blows to him and his left hand elbow was injured. It is asserted by this witness that accused No.9, i.e. Shankerbhai Ramdas, and accused No.11, i.e. Dahyabhai Hirdas, gave stick blows on his waist whereas accused No.17, i.e. Babubhai Kantidas, and accused No.5, i.e. Ambarambhai Keshavlal, gave stick blow on his left shoulder, and accused No.19, i.e. Shivabhai Ramchand caused injury on his right knee whereas accused No.28, i.e. Lalbhai, gave stick blows on his chest. According to this witness, Vithalbhai Babaldas came to rescue him and his brother but accused No.2 - appellant No.1 herein, caused injury on his head by an axe whereas accused No.20 Bhailalbhai Manilal gave stick blow on head of Vithalbhai. It is also stated by the witness that accused No.2 - the appellant No.1 herein, i.e. Chhanabhai Kanjibhai, accused No.29 Bhailalbhai Babaldas and accused No.21 Dipakbhai caused injuries to Vithalbhai by means of sticks. This witness has also asserted that his wife Dahiben, her daughter Anandi and Champaben - sister of injured Vithalbhai intervened to rescue them but they were also assaulted and injured. 11.1 Injured witness Vithalbhai Babaldas Patel examined at Exh.58 has stated that on the day of incident, he was present at his milk dairy situated near sim of his Village Chadasana. The witness has mentioned that on hearing commotion, he came out of his dairy and found that Lalbhai and Rameshbhai were being assaulted by the accused with dhariya, sticks, axes, etc. According to this witness, accused No.1, i.e. Govindbhai, gave dharia blow on head of Rameshbhai as well as on the elbow and hip of Lalbhai. The witness has maintained that he asked the accused to stop beating, but accused No.2 the appellant No.1 herein, i.e. Babubhai Ramdas, caused injury on his head and accused No.5, i.e. Ambalal Keshavlal, caused injury by means of dharia on his little finger. It is also stated by the witness that accused