The present appeal arises out of judgment and order rendered by the learned Additional Sessions Judge, Fast Track Court No.5, Bhavnagar at Mahuva on 21st December, 2005 in Sessions Case No.2 of 2001. 2. In the incident that occurred on 1st June, 2000 at about 18 00 hours, six persons were allegedly involved and five persons came to be chargesheeted. They are the appellants before this Court. One of the persons involved in the incident and named as accused No.3 – Samantbhai Virabhai, expired on 18th November, 2000 and the case against him came to be abated.
3. The trial Court convicted all the accused persons before it for the offences punishable under Sections 302, 324, 323, 504 and 506(2) of the Indian Penal Code ('IPC' for short) with the help of Sections 147, 148 and 149 of the IPC. The trial Court also recorded conviction for the offence punishable under Section 135 of the Bombay Police Act and hence, this appeal by the convicts.
4. The brief facts of the case are that on 1st June, 2000, first informant – Halubhai Golanbhai had gone to Kolivad Plot, where he met Anak – accused No.5 and then the other accused persons. Accused No.5 had an altercation with Jagu – brother of the first informant in respect of some dispute with Jagu and younger brother of accused No.5. Suddenly, accused No.5 was provoked and accused No.4 gave a pipe blow on the head of Jagu and second blow on his hand. Accused No.5 was armed with spear and hit blow on the head of the first informant. On account of hubbub created due to this, father of the first informant Golanbhai came there and was attacked by accused No.2 with an Axe and he gave various blows with the hind portion of the Axe on abdominal part of his body. First informant, therefore, snatched away the pipe from the hands of unknown person and started wielding the same in defence. The stick once hit the head of Anak – accused No.5. He suffered bleeding injury. Ultimately, they were rescued by others and the assailants went away. First informant – Halubhai Golanbhai lodged First Information Report with Datha Police Station, Bhavnagar District. On the basis of which, offence was registered and invested; and the investigating agency having found sufficient material, filed chargesheet in the Court of Judicial Magistrate, First Class at Talaja, who, in turn, committed the case in the Court of Sessions and Sessions Case No.2 of 2001 was registered.
5. Charge was framed against the accused at Exh.12 for the offences punishable under Sections 147, 148 and 302 read with Section 149, under Section 324 read with Section 149, under Section 323 read with Section 149, under Section 504 read with Section 114 and under Section 506(2) read with Section 114 of the IPC and under Section 135 of the Bombay Police Act. The accused persons pleaded not guilty to the charge and came to be tried.
5.1 The trial Court convicted all of them for all the offences with the help of Section 149 or Section 114 of the IPC and hence, this appeal.
6. We have heard learned advocate Mr. Shah for the appellants.
He has taken us through the record and proceedings and submitted that accepted against accused No.2 – Bhanubhai Dudabhai, there was no charge of murder or murder with common object of unlawful assembly, against any of the accused and the conviction of the accused persons other than accused No.2, therefore, would stand vitiated.
7. Learned advocate Mr. Shah further submitted that if the evidence of the eyewitnesses is seen, there is not a whisper about the accused persons having constituted an unlawful assembly and having formed a common object of causing death of the deceased or of assaulting anyone. In fact, the evidence would show that the incident occurred all of a sudden with premeditation and therefore, each of the accused can be held responsible for their individual act. Learned advocate Mr. Shah further submitted that the way in which the incident is alleged to have occurred, would also go to show that the deceased came to the place of incident after hearing the hubbub, if that is so, there could not have been any common object of causing murder of the deceased, because, his arrival at the place of incident was unexpected. Learned advocate Mr. Shah also submitted that the trial Court has, therefore, committed an error in recording the conviction with the help of Section 149 of the IPC in respect of all the accused persons.
7.1 Learned advocate Mr. Shah further submitted that accused No.2, who has been convicted for the offence of murder punishable under Section 302 with the help of Section 149 of the IPC, could not have been convicted for the offence punishable under Section 149 of the IPC. He also submitted that he had served the sentence and then, on getting benefit of remission, has been released from the prison. So far as rest of the accused appellants are concerned, Learned advocate Mr. Shah submitted that they all are on bail.
7.2 Learned advocate Mr. Shah submitted that for other offences, the trial Court adopted undue harsh approach by sentencing the accused persons for the highest period under the law. In absence of any special circumstances, involvement of the accused persons in the incident was a sudden reaction of a dispute and neither prior to the incident nor subsequent to the incident are they involved in any other case.
7.3 Learned advocate Mr. Shah submitted that accused No.1 and accused No.5 are very young persons. One of whom has recently engaged and one of whom has got married recently. Accused No.6 has lost his father after the incident and therefore, the sentence is too harsh.
7.4 Learned advocate Mr. Shah in all fairness conceded that he does not assail the findings of conviction of the appellants, but, he challenges their conviction mainly with the help of Section 149 of the IPC.
7.5 Learned advocate Mr. Shah further submitted that looking to the young age of the persons involved in the offence and the time that is lapsed in between nearly about 12 years, Court may take a lenient view in the matter.
8. The appeal is opposed by learned APP Mr. Kodekar.
9. We have gone through the record and proceedings in context of rival submissions. A look at Exh.12 has satisfied us that except accused No.2 – Bhanubhai Dudabhai, no other accused is charged with offence of murder either independently or with the help of Section 149 of the IPC. Therefore, conviction of accused persons other than accused No.2 – Bhanubhai for the offence of murder with the help of Section 149 of the IPC cannot be sustained and hence, to be set aside. The conviction in respect of other accused for the offence punishable under Section 302 read with Section 149 of the IPC is set aside. Conviction of accused No.2 – Bhanubhai Dudabhai also cannot be sustained under that provision, but, if the evidence of eyewitnesses viz., Halubhai Golanbhai – Exh.53 and Jagubhai Golanbhai – Exh.68 are seen, his involvement in the incident is clear. He had inflicted multiple blows with hind portion of the Axe in the abdominal area of the deceased and the deceased was died because of damage to internal organ on account of abdominal injuries, as can be seen from Postmortem Note – Exh.49 that cause of death is shown to be Septicemia, Uremia following blunt abdominal and trauma with associated internal injuries. Therefore, accused No.2 is to be convicted under Section 302 of the IPC for his individual act.
10. It is required to be noted that it emerges from the evidence that in respect of this very incident, a cross complaint was also lodged against the first informant, as admitted by him in his crossexamination. This would add strength to the argument of learned advocate Mr. Shah that the evidence would not indicate a premeditated act on the part of the accused; that there was a cross case in respect of the same incident and therefore, it is also a case of free fight, which would result into holding each accused responsible for his individual act. Therefore, conviction of accused No.2 – Bhanubhai Dudabhai for the offence of murder of Golanbhai has to be confirmed with a rider that it would be an offence punishable under Section 302 of the IPC only and not with the help of Section 149 of the IPC.
11. Learned advocate Mr. Shah similarly did not press for a clean acquittal in respect of other accused persons as their involvement is more or less established in the evidence of first informant – Halubhai Golanbhai and Jagubhai Golanbhai. The third witness, who supports the prosecution case, is Gabharubhai Jinabhai – Exh.66.
12. So far as the other accused persons are concerned, they all have been convicted for the offence punishable under Section 302 read with Section 149 of the IPC, which has to be set aside for the reasons stated hereinabove and their conviction for that offences is accordingly set aside.
12.1 So far as accused No.1 – Bharatbhai and accused No.6 – Vastubhai are concerned, they have been held guilty for the offence punishable under Section 323 of the IPC. Both of them have been sentenced to undergo rigorous imprisonment for one year with a fine of Rs.800/ (Rupees Eight Hundred only) each, in default, simple imprisonment for two months. While confirming the conviction, we have to observe that the trial Court has inflected maximum punishment prescribed for the offence i.e. one year rigorous imprisonment. Both these accused persons have no criminal antecedents nor are they shown to have indulged in any criminal activity after the incident during their bail. We are, therefore, of the view that their sentence deserves to be reduced to rigorous imprisonment for five months with no change in fine.
12.2 So far as accused No.4 – Keshubhai and accused No.5 – Anak are concerned, they have been convicted for offence punishable under Section 324 of the IPC besides Section 302 read with Section 149 of the IPC, which part have already been set aside by us in the foregoing paragraph. Both of them have been ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/ (Rupees Two Thousand only).
13. As urged by learned advocate Mr. Shah, accused No.5 – Anak has been recently married, he has no other criminal antecedents. We are also satisfied that the incident occurred all of sudden. Therefore, the ends of justice would meet if the sentence is altered from rigorous imprisonment for two years to rigorous imprisonment for six months with fine of Rs.15,000/ (Rupees Fifteen Thousand only), in default, to undergo rigorous imprisonment for further three months.
14. So far as conviction of all the accused under Section 504 read with Section 114 of the IPC is concerned, the evidence would indicate that the words are attributed only to accused No.5 – Anak and therefore, conviction of the rest of the accused is set aside.
14.1 So far as accused No.5 – Anak is concerned, while confirming the conviction, the sentence is reduced to one month with no change in fine for the said offence punishable under Section 135 of the Bombay Police Act.
15. For the foregoing reasons, the appeal stands partly allowed.
15.1 Conviction of all the appellants for the offence punishable under Section 302 read with Section 149 of the IPC is set aside.
15.2 Original Accused No.2 – Appellant No.2 – Bhanubhai is convicted for the offence of murder punishable under Section 302 of the IPC and is sentenced to imprisonment for life with a fine of Rs.10,000/ (Rupees Ten Thousand only), in default, to undergo simple imprisonment for three years.
15.3 Conviction of all the accused persons for offence punishable under Section 324 read with Section 149 of the IPC, Section 323 read with Section 149 of the IPC, Section 504 read with Section 114 of the IPC and Section 506(2) read with Section 114 of the IPC is set aside.
15.4 Original Accused No.1 – Bharatbhai is convicted for the offence punishable under Section 323 of the IPC and is sentenced to undergo rigorous imprisonment for five months with no change in fine.
15.5 Original Accused No.4 – Keshubhai is convicted for the offence punishable under Section 324 of the IPC and is sentenced to undergo rigorous imprisonment for six months with a fine of Rs.15,000/ (Rupees Fifteen Thousand only), in default, to undergo rigorous imprisonment for nine months.
15.6 Original Accused No.5 – Anak is convicted for offence punishable under Section 324 of the IPC and is sentenced to undergo rigorous imprisonment for six months with a fine of Rs.15,000/ (Rupees Fifteen Thousand only), in default, to undergo rigorous imprisonment for nine months. Original Accused No.5 – Anak is also convicted for offence punishable under Section 504 of the IPC and is sentenced to undergo rigorous imprisonment for one month with no change in fine.
15.7 Original Accused No.6 – Vastubhai is convicted for offence punishable under Section 323 of the IPC and is sentenced to undergo rigorous imprisonment for five months with no change in fine.
15.8 Accused Nos.1, 2, 4 and 5 are convicted for offence punishable under Section 135 of the Bombay Police Act and are sentenced to undergo rigorous imprisonment for one months with no change in fine.
15.9 All sentences shall run concurrently.
[A.L. Dave, J.] [N.V. Anjaria, J.] #MH Dave