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. ====================================== DESAI KARAMSI JESINGBHAI (RABARI) - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ====================================== Appearance :
Criminal Appeal No. 1303 of 2006 & 1450 of 2006 Mr. Y.S.
Lakhani, Sr. Advocate for Mr. Chintan S Popat for the appellants. , Mr. H.H. Parikh APP for respondent State.
In Criminal Appeal No. 2182 of 2006 Mr.
H.H. Parikh, APP for appellant State.
Mr.
Y.S. Lakhani, Sr. Advocate with Mr. Chitan S. Popat, for the respondents No.1 to 4, 6 to 10, 12 and 13.
Respondents No. 5 and 11 unserved expired.
====================================== CORAM :
HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 11/05/2010 COMMON C.A. V. JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The appellants convicts Rameshbhai Amaratbhai Rabari original accused No.1 and Himatbhai Karamshibhai Rabari, original accused No.3 have filed Criminal Appeal No.1450 of 2006 against the judgment convicting them for the offence punishable u/s 302 r/w section 34 of the I.P. Code and Karamshibhai Jesingbhai Rabari, original accused No. 2 has filed Criminal Appeal No. 1303 of 2006 against the judgment convicting him for the offence punishable u/s 325 of the I.P. Code, under Section 374 of the Code of Criminal Procedure, 1973, rendered by learned Additional Sessions Judge, Fast Track Court No.2, Patan in Sessions Case No. 100 of 2002 (Old Sessions Case No.34 of 1997) on 6-7-2006.
2. State has also preferred acquittal appeal being Criminal Appeal No.2182 of 2006 under Section 378 of the Code Criminal Procedure, 1973 challenging the order of acquittal passed in the aforesaid Sessions Case.
3. The appellants with other 13 accused were prosecuted for the offences punishable u/s 147, 148, 302, 323, 325, 326, 504 read with section 149 and 34 of the I.P. Code and u/s 135 of the Bombay Police Act by learned Additional Sessions Judge, Fast Track Court, Patan. After trial the appellants of Criminal Appeal No.1303 of 2006 and Criminal Appeal No. 1450 of 2006 with accused Ghemarbhai Nagjibhai Rabari (A-15), accused Maganbhai Dalabhai Rabari (A-16) and accused Babubhai Nagjibhai Rabari (A-10) were convicted and sentenced. Out of the convicts, the appellants have challenged judgment and order of their conviction. Other convicts have not challenged their conviction.
4. According to the prosecution case, on 20-10-1996 between 20-30 and 21-00 hours when the complainant and witnesses were going to Chamunda Temple with Mataji's Palli (a religious procession with deity), the accused forming unlawful assembly armed with deadly weapons like dhariya and sticks used force and made assault on them at the road going to village Ganget from village Ziliya saying as to why they took out palli without asking them. It was further prosecution case that accused Rameshbhai Amrutbhai (A-1) and accused Kanjibhai Laxmanbhai (A-7) gave dhariya blows on the head, accused Karamshibhai Jesingbhai (A-2) gave ringed stick blow on the right hand, accused Rameshbhai Kanjibhai (A-8) gave stick blows on the head and back of Karshanbhai Lilabhai and accused Babubhai Karamshibhai (A-4), accused Amaratbhai Jesingbhai (A-5) and accused Hargovanbhai Karshanbhai (A-6) gave stick blows on the back and other parts of person of Karshanbhai Lilabhai. On account of such injuries, Karshanbhai Lilabhai died.
5. It was further prosecution case that accused Kanjibhai Laxmanbhai (A-7) gave dhariya blow on the head and accused Rameshbhai Kanjibhai (A-8_ gave stick blows on the head and the back of injured witness Mohanbhai.
6. It was also the prosecution case that accused Maganbhai Arjanbhai (A-9) gave stick blow on the head, accused Babubhai Nagjibhai (A-10) gave stick blow on right foot and accused Nagjibhai Dalabhai (A-14) gave stick blow on the belly of injured witness Ishwarbhai.
7. It was further prosecution case that accused Mohanbhai Dalabhai (A-12) gave stick blows on the back and accused Jayrambhai Maganbhai (A-13) gave stick blows on the shoulder of injured witness Kanjibhai Maganbhai and accused Ghemarbhai Nagjibhai (A-15) and accused Maganbhai Dalabhai (A-16) gave stick blows on the back of injured witness Amaratbhai Mohanbhai.
8. It was also prosecution case that the accused committed breach of the notification of prohibition of arms issued by the District Magistrate, Patan by possessing deadly weapons prohibited under the said notification.
9. On the basis of First Information Report lodged by injured witness Amrutbhai Mohanbhai offence was registered as I CR No. 140 of 1996 by Chanasma Police Station for the offences punishable u/s 147, 148, 149, 323, 325, 326, 506 and 307 of the I.P. Code and u/s 135 of the Bombay Police Act. As injured Karshanbhai Lilabhai died during treatment, Section 302 of the I.P. Code was added. During the course of investigation, panchanama of scene of offence, panchanama of discovery of weapons and panchnama of clothes of the accused were drawn. Statement of the witnesses were recorded and muddamal recovered during investigation was sent to Forensic Science Laboratory for examination and dead body of Karshanbhai Lilabhai was sent for postmortem examination and accused were arrested. At the end of investigation, charge sheet came to be filed against them in the court of learned J.M.F.C., Chanasma for the aforesaid offences.
10. As the offence of murder was exclusive triable by the court of Sessions, the case was committed to Sessions Court, Mehsana and was registered as Sessions Case No.34 1997. On establishment of judicial District of Patan, the case was transferred to Sessions Court, Patan and it was renumbered as Sessions Case No. 100 of 2002. Learned Additional Sessions Judge, Second Fast Track Court, Patan framed charge at Exh. 52 against the accused for the aforesaid offences. The charge was read over and explained to them. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced evidence. At the end of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure, 1973 stated that they had assembled to celebrate festival of Palli and they have not picked up any quarrel or have not played any role in the quarrel and have been falsely implicated in the offence.
11. After hearing the learned Addl. Public Prosecutor and learned advocate for the accused, the learned trial Judge recorded that accused Rameshbhai Amrutbhai (A-1) and accused Himatbhai Karamshibhai (A-3) are guilty for the offence punishable u/s 302 read with section 34 of the I.P. Code but acquitted rest of the accused for the offence punishable u/s 302 read with section 34 of the I.P. Code. The trial Court also recorded that accused Karamshibhai Jesingbhai (A-2) and accused Ghemarbhai Nagjibhai (A-15) are guilty for the offence punishable u/s 325 of the I.P. Code, but acquitted rest of the accused for the offence punishable u/s 325 read with section 34 of the I.P. Code. The trial court also recorded that accused Ghemarbhai (A-15) and accused Maganbhai Dalabhai (A-16) are guilty for the offence punishable u/s 323 of the I.P. Code but acquitted rest of the accused for the offence punishable u/s 323 read with section 34 of the I.P. Code.
12. After hearing the accused with regard to sentence, , learned trial Judge imposed various sentences on the accused. Being aggrieved by the said decision, the appellants convicts have preferred these appeals.
13. It may be recorded that accused Nagjibhai Arjanbhai (A-11) died during pendency of trial and hence the case against him was abated. It may also be recorded that accused Kanjibhai Laxmanbhai (A-7) and accused Nagjibhai Dalabhai (A-14) died during pendency of the appeals. Therefore, the appeal filed by the State qua these accused also stands abated.
14. It may also be recorded that accused Amaratbhai Jesingbhai (A-5) also filed First Information Report in respect of the same incident before Chanasma Police Station for the offences punishable u/ss. 147, 148, 149, 324, 323, 294-B and 506(2) of the I.P. Code and u/s 135 of the Bombay Police Act and the offence was registered as CR I No. 142 of 1996. On completion of investigation in the said offence charge sheet was filed against the accused. The case was committed to the Sessions Court, Patan and it was registered as Sessions Case No. 183 of 2002. A supplementary charge sheet was filed n the said case and after committal to Sessions Court it was registered as Sessions Case No. 346 of 2002. As the cases arise out of the same incident, Sessions Case No.100 of 2002, Sessions Case No.183 of 2002 and Sessions Case No.346 of 2002 , were tried and disposed of simultaneously by the trial court. The accused convicted in Sessions Case No. 346 of 2002 also preferred appeal against their conviction. State has also preferred acquittal appeal against the judgment in Sessions Case No.100 of 2002. Therefore, all the appeals are simultaneously heard and decided by this Court.
15. We have heard learned Senior Advocate Mr. Y.S. Lakhani, for the appellants and learned A.P.P. Mr. H.H. Parikh for the respondent State in Criminal Appeals No.1303 of 2006 and 1450 of 2006 and Mr. H.H. Parikh, learned A.P.P. For the appellant State and learned Senior Advocate Mr. Y.S. Lakhani, for the respondents in Criminal Appeal No. 2183 of 2006 at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial court.
16. In Criminal Appeal No. 1303 of 2006 learned Sr. Advocate Mr. Lakhani has submitted that the incident occurred all of a sudden in a quarrel while 'palli' was being taken out and there was no intention on the part of accused to commit murder. He has also submitted that the accused did not form unlawful assembly as alleged with common object to assault but the incident occurred in spur of moment. He has also submitted that as there was clash between two groups the accused were entitled for private defence and there is delay in lodging first information report. He has also submitted that no independent witnesses have been examined and complete chain of circumstances is not established. He has also submitted that in the cross case the accused have been convicted, and therefore, the impugned judgment is required to be quashed. As regards acquittal appeal , he has submitted that no perversity is pointed out and hence this Court should not interfere with the finding of acquittal recorded by the trial court.
17. Learned A.P.P. Mr. Parikh has submitted that the accused with pre-determined mind armed with weapons made attack. Therefore, it cannot be said that the incident occurred in a sudden quarrel. He has also submitted that as cross case is also filed, involvement is established and first information report was lodged immediately after the incident and therefore the trial court was justified in convicting the accused. He has also submitted that as far as State appeal is concerned the trial court overlooked the evidence indicating the involvement of the accused in the incident. Therefore, the acquittal appeal is required to be allowed.
18. In order to prove charge, the prosecution examined P.W. 1 Amaratbhai Mohanbhai at Exh. 75. According to the witness, the incident occurred at eighth night of Navratri while taking 'Mataji's Palli ' to Chamunda Temple. According him, when they reached on the road going to village Ganget with 'Mataji's Palli the accused came there and accused Karamshibhai Jesingbhai (A-3) asked as to why they took out 'palli' without asking him as he was a leader in the village. He has also submitted that reply by deceased Karshanbhai Lilabhai enraged the accused. According to the witness, accused Rameshbhai Amrutbhai (A-1) and accused Himatbhai Karamshibhai (A-3) gave 'dhariya' blows on head of Karshanbhai Lilabhai and accused Karamshibhai Jesingbhai (A-2), accused Babubhai Karamshibhai (A-4), accused Amarshibhai Jesingbhai (A-5) and accused Hargovanbhai Karamshibhai (A-6) made assault with sticks on Karshanbhai Lilabhai.. From the cross-examination of the witness, it is revealed that another First Information Report was filed in respect of the same incident and after completion of investigation, charge sheet was filed. It indicates that taking out 'palli' is a Rabari community festival and all 'rabaris' participate and celebrate the same. The cross-examination further indicates that there was heated exchange of words by accused Karamshibhai Jesingbhai (A-2) as 'palli' was taken out without asking him and quarrel resulted into scuffle and there was free fight between the members of two groups. The cross-examination also indicates that on account of heated exchange of words, the atmosphere became tense and ultimately the incident ensued and members of both the groups who were armed with the weapons sustained injuries in the scuffle. The evidence of this witness indicates that Karshanbhai Lilabhai died on account of injuries sustained by him. The witness has also stated that accused Ghemarbhai Nagjibhai (A-15) and accused Maganbhai Dalabhai (A-16) gave him stick blows on his back and on account of injuries he was taken to Chanasma Government Hospital but as Doctor was not available he was taken to Mehsana Civil Hospital. According to the witness, he lodged the first information report. Exh. 76.
19. First Information report Exh. 76 alleges that when the complainant and others were taking out 'mataji's palli' towards Chamunda Temple, the accused armed with sticks and 'dhariya' came there and accused Karamshibhai Jesingbhai (A-2) asked them as to why 'palli' was taken out without asking him as he was leader in the village. It also alleges that the accused got enraged on reply and made assault with weapons and injuries were caused.
20. The evidence of P.W. 2 Ishwarbhai Mohanbhai Rabari Exh.80 is on the same line of P.W. 1 Amarshibhai Mohanbhai Exh.75. It emerges from the evidence of this witness that prior to the incident, there was heated exchange of words and the accused got enraged and made assault The evidence also indicates that several persons sustained injuries and injured Karshanbhai Lilabhai died on account of injuries. . The evidence of this witness also indicates that accused Rameshbhai Amarshibhai (A-1), and accused Himatbhai Karamshibhai (A-3) gave 'dhariya' blows on the head of the deceased and accused Karamshibhai Jesingbhai (A-2), accused Amaratbhai Jesingbhai (A-5), accused Babubhai Karamshibhai (A-4) and accused Hargovanbhai Karamshibhai (A-6) hit Karshanbhai Lilabhai with stick. It further indicates that accused Maganbhai Arjanbhai (A-9), accused Babubhai Nagjibhai (A-10) and accused Nagjibhai Dalabhai (A-14) hit the witness stick blows. According to the witness, he was taken to Mehsana Civil Hospital for treatment and thereafter to Civil Hospital, Ahmedabad and he was treated there as an indoor patient for about 4 to 6 days
21. The evidence of P.W. 3 Kanjibhai Maganbhai Exh. 82 also indicates that prior to the incident there was heated exchange of words with regard to taking out 'palli' without asking accused Karamshibhai Jesingbhai (A-2) and on reply the accused got enraged and accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) caused injuries with 'dhariya' on head of deceased Karshanbhai Lilabhai. Both these witnesses have stated that accused Karamshibhai Jesingbhai (A-2), accused Babubhai Karamshibhai (A-4), accused Amaratbhai Jesingbhai (A-5) and accused Hargovanbhai Karamshibhai (A-6) also caused injuries with stick to Karamshibhai Lilabhai. According to the witness, accused Nagjibhai Arjanbhai (A-11) hit 'dhariya' on his head and accused Jayrambhai Maganbhai (A-13) and accused Mohanbhai Dalabhai (A-12) hit him with sticks on his back and right hand respectively and after the incident, he was taken to Mehsana Civil Hospital and from there shifted to Civil Hospital, Ahmedabad for treatment.
22. The evidence of P.W. 4 Dharamshibhai Taljabhai Exh. 83 has attributed head injuries of Karshanbhai Lilabhai to accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3). The witness has also deposed about stick injuries to Karshanbhai Lilabhai as deposed by the other witnesses. According to the witness after the incident he was assaulted by some of the accused at Mehsana but as there is no medical evidence in that regard and as the same was not part of the same transaction further discussion is not required for the same.
23. The prosecution has examined P.W. 14 Dr. Jayendrabhai Ratilal Modi at Exh. 129 to prove homicidal death of Karshanbhai Lilabhai. According to the Doctor head injuries were sufficient in the ordinary course of nature to cause death. Postmortem Report Exh. 130 indicates that cause of death was, head injuries. In view of this medical evidence, the prosecution has proved beyond reasonable doubt that death was homicidal in nature and it was neither accidental nor suicidal.
24. As regards injuries to P.W. 1 Amaratbhai, P.W. 2 Ishwarbhai and P.W. 3 Kanjibhai, the prosecution examined P.W. 15 Dr. Kantilal Patel Exh. 87 who treated them initially. The witness has also produced the injury certificates at Exh.88 to 90. These certificates indicate the injuries and nature of weapon by which such injuries could be caused. According to the Doctor, injury to P.W. 1 Amaratbhai was possible by hard and blunt substance. P.W. 1 Amaratbhai has stated that three accused made assault on him with stick. Similarly, according to the Doctor injury No.1 to P.W. 2 Ishwarbhai was possible by sharp edged object and injury No. 2 was possible by hard and blunt substance but P.W. 2 Ishwarbhai has alleged three injuries by stick by three accused. The witness was also examined by Dr. Dipak Jagani Exh. 118 and he has issued certificate Exh. 120. The certificate indicates only one injury. According to Doctor P.W. 14, the injury to P.W. 3 Kanjibhai was possible by sharp edged object but the injured has alleged one injury by Dharia and two injuries by stick. Therefore, the oral version of the injured does not get support from medical evidence.
25. In view of above evidence, it clearly emerges that palli' was taken out by members of one group but accused Karamshibhai Jesingbhai (A-2) a member of other group made a grievance as to why it was taken out without seeking his permission. Reply enraged the accused and there was heated exchange of words between members of both the groups and the exchange of words turned into quarrel and it ended in free fight between two groups. It also appears that members of both the groups had arms and had sustained injuries in the incident. It appears that taking out mataji's palli' is a religious festival of Rabaris . It also appears that quarrel started between the two groups as the procession was started without the consent of one of the member of the community. There is no evidence to indicate that the accused had assembled with pre-determined mind to cause murder of Karshanbhai Lilabhai. It cannot be said that the accused made assault with an intention of causing death or it was made with an intention of causing bodily injuries which were likely to cause death. The manner in which the incident occurred it cannot be said that the accused formed unlawful assembly in prosecution of the common object to commit murder of Karshanbhai Lilabhai. Even the evidence does not indicate that accused Rameshbhai Amaratbhai (A-1) and , accused Himatbhai Karamshibhai (A-3) made assault with 'dhariya' on the head of the deceased with pre-determined mind. It also appears that assault was made in a sudden fight in heat of passion upon a sudden quarrel and accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) did not act in cruel or unusual manner in the attack on deceased which resulted into his death. There is no evidence to indicate that act was done by accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) in furtherance of common intention to cause death. Therefore, the learned trial Judge committed error in convicting accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) for the offence punishable u/s 302 read with section 34 of the I.P. Code. On overall appreciation of evidence in our view the case would fall under exception 4 to Section 300 of the I.P. Code and hence conviction of accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) is required to be altered from Section 302 read with section 34 of the I.P. Code to Section 304 Part-I of the I.P. Code.
26. As regards conviction of Karamshibhai Jesingbhai (A-2) appellant of Criminal Appeal No.130 1303 of 2006 is concerned, according to the prosecution, appellant accused caused injuries to deceased Karshanbhai Lilabhai by ringed stick on his right hand. The prosecution has not alleged any injury by the appellant accused to any other injured.
27. The injured witnesses examined by the prosecution have also not attributed any injury by the appellant accused Karamshibhai Jesingbhai (A-2). The postmortem report of deceased Karshanbhai Lilabhai produced at Exh. 130 does not indicate any external injury by ringed stick. P.W. 14 Dr. Jayendrabhai has deposed that the deceased had fracture on humerus bone and such injury was possible by stick. But the witness has not attributed any injury by ringed stick. The injured witnesses have also deposed that all the accused including accused Karamshibhai Jesingbhai (A-2) attacked the deceased with stick. They have not stated that accused Karamshibhai Jesingbhai (A-2) attacked the deceased by ringed stick.
28. In view of the evidence of the injured witnesses, there ought to have been more than one injury by stick on the deceased. No such external injuries are found on the dead body. Therefore, there is no evidence to connect Karamshibhai Jesingbhai (A-2) for the injury of fracture found on the dead body. Therefore, it becomes doubtful that the said accused inflicted any injury to the deceased as alleged by the prosecution. Therefore, in our view, the learned trial Judge committed error in convicting accused Karamshibhai Jesingbhai (A-2) for causing injuries to the deceased and hence his conviction is required to be set aside.
29. As regards State appeal against acquittal, as observed earlier, the evidence does not indicate that the accused formed an unlawful assembly with common object to make assault. Even there is no evidence indicating involvement of the respondents accused of the acquittal appeal in causing injuries to the deceased or to the injured witnesses. The prosecution evidence in that regard is contradictory and without support of medical evidence. Learned A.P.P. Mr. Parikh has not been able to indicate that the learned trial Judge has committed error in appreciation of evidence with regard to involvement of the respondents accused in the offence. Even he has not been able to point out any infirmity in the impugned judgment . It is settled proposition that order of acquittal can be reversed only if the Court finds that the finding recorded by the court is perverse. In the present case, we do not find any perversity in the finding recorded by the trial court and therefore the acquittal appeal is required to be dismissed.
30. We have heard learned senior advocate Mr. Y.S. Lakhani for the appellant convicts Rameshbhai Amaratbhai (A-1) and Himatbhai Karamshibhai (A-3) with regard to sentence.
31. Having regard to the facts and circumstances of the case and the manner in which the incident occurred, in our view, five years' rigorous imprisonment would be just and adequate sentence to accused Rameshbhai Amaratbhai (A-1) and accused Himatbhai Karamshibhai (A-3) for the offence punishable u/s 304 Part-I of the I.P. Code.
32. In the result, Criminal Appeal No. 1450 of 2006 filed by appellants convicts Rameshbhai Amaratbhai (Accused No. 1) and Himatbhai Karamshibhai (accused No.3) is partly allowed and their conviction is altered from Section 302 of the I.P. Code to Section 304 Part-I of the I.P. Code and they are sentenced to undergo rigorous imprison for five years years with no change in fine.
33. With regard to Criminal Appeal No. 1303 of 2006 filed by appellant Karamshibhai Jesingbhai Rabari (A2) is concerned, it is allowed and his order of conviction and sentence is set aside and he is acquitted for the charges levelled against him. As he is on bail, his bail bond shall stand cancelled.
34. The acquittal appeal being Criminal Appeal No. 2182 of 2006 filed by State qua respondent No. 5 Rabari Kanjibhai Laxmanbhjai and respondent No.11 Rabari Nagjibhai Dalabhai stands abated and qua other respondents stands dismissed.. The muddamal be disposed of as directed by the trial court.
(A.L.
Dave, J.) (Bankim N. Mehta, J.) /JVSatwara/ Top