(Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of judgement and order rendered by Sessions Court, Valsad, on 28.12.2004 in Sessions Case No. 34 of 2002 (old Sessions Case No. 90 of 1994) whereby the appellants in Criminal Appeal No. 115 of 2005 came to be convicted for the offences punishable under Sections 302, 324, 325 read with Section 149 of the Indian Penal Code ("IPC" for short) so also under Sections 143, 147, 148, 504 of the I.P.C. and the said appellants were original accused Nos. 2, 3,4,7,10 and 13 in the said Sessions Case who came to be tried for the said offences along with accused Nos. 1, 5, 6, 8, 9, 12, 14, 15 and 16 in the said case. Those accused came to be acquitted by the trial Court and therefore the State has preferred Criminal Appeal No. 1235 of 2005 against their acquittal. For the sake of convenience, the appellants in Criminal Appeal No. 115 of 2005 and the respondents in Criminal Appeal No. 1235 of 2005 would be addressed by their original accused number in the Sessions Case in this judgement.
2. The facts of the case in brief are that the accused persons and the complainant's side are inter-related and had some dispute in respect of the land and property. Litigations were pursued by both the sides. On 15.5.1994 it is the case of the prosecution that at about 7.30 a.m. the complainant's side had gone to the disputed field for cutting tree. At that time accused persons went there for that very purpose. When two groups encountered each other, there was an altercation and a fight and in that fight persons from both the sides suffered injuries and one person from the complainant's side died because of the injuries suffered by him. The complainant therefore lodged an FIR with Dharampur Police Station, on the basis of which offence was registered and investigated and ultimately chargesheet came to be filed in the Court of learned J.M.F.C., Dharampur. The offences alleged in the chargesheet were triable by Court of Sessions exclusively, learned Magistrate committed the case to the Court of Sessions, Valsad at Navsari and Sessions Case No. 90 of 1994 came to be registered. Later on, upon bifurcation of Navsari District, the case was sent to Valsad and new Sessions Case No. 34 of 2002 came to be registered.
3. Charges were framed at Exh. 4 for offences punishable under Sections 143, 147, 148, 504 read with Section 149, Section 323 read with Section 149 and 325 read with Section 149 of the IPC. The accused persons pleaded not guilty and came to be tried but the Sessions Court found that the prosecution was successful in establishing charges of offences punishable under Sections 143, 147, 148 of the IPC against accused Nos. 2, 3, 4, 7, 10 and 13 besides Sections 504 read with Section 149 of IPC. The Court also found that charges against accused Nos. 2 and 7 for offences punishable under Sections 325, 325 read with Section 149 were established. The Court also found that the prosecution successfully established the charges of offences punishable under Sections 324 read with Section 149 of IPC against accused Nos. 2, 3, 4 and 7 and offence of murder punishable under Section 302 read with Section 149 was proved against such accused Nos. 2, 3, 4 and 7. The Court found that the prosecution could not establish the charges against accused Nos. 1, 5, 6, 8, 9, 11 and 12 for offences punishable under Sections 143, 147, 148, 324, 325, 302 and 149 of the IPC. The trial Court held that the accused persons were required to be acquitted for offences punishable under Section 323 read with Section 149 besides Section 135 of the Bombay Police Act.
4 Trial Court sentenced accused Nos. 2, 3, 4, 7, 10 and 13 for offences punishable under Section 143 of the IPC with simple imprisonment. For offences punishable under Section 147 of the IPC accused Nos. 2, 3,4,7,10 and 13 were held guilty and sentenced to undergo simple imprisonment for six months.
5 Accused Nos. 2, 3,4,7,10 and 13 were held guilty of offence punishable under Section 148 of the IPC and sentenced to undergo simple imprisonment for one year. Accused Nos. 2, 3,4,7,10 and 13 were held guilty for offence punishable under Section 504 read with Section 149 of the IPC and sentenced to undergo simple imprisonment for six months. Accused Nos. 10 and 13 were held guilty of offence punishable under Section 324 of the IPC whereas accused Nos. 2, 3, 4, 7 were held guilty of offence punishable under Section 324 of IPC and sentenced to undergo six months' simple imprisonment. For offence punishable under Section 324 read with Section 149 of the IPC accused Nos. 10 and 13 were ordered to undergo simple imprisonment for one year. Accused Nos. 2 and 7 were held guilty for offence punishable under Section 325 of IPC and ordered to undergo simple imprisonment for 3 years with fine of Rs. 500/- each. Accused Nos. 3, 4, 10 and 13 were held guilty of offence punishable under Section 325 read with Section 149 of the IPC and were ordered to undergo simple imprisonment for one year with fine of Rs. 200/-, in default simple imprisonment for 10 days.
6 Accused Nos. 3 and 13 were held guilty of offence punishable under Section 302 of the IPC and were sentenced to undergo imprisonment for life along with fine of Rs. 1000/-, in default simple imprisonment for 2 months each. Accused Nos. 2, 4,7 and 10 were held guilty for offence punishable under Section 302 read with Section 149 of the IPC and ordered to undergo imprisonment for life with fine of Rs. 500/- each and in default to undergo simple imprisonment for one month. All the sentences were ordered to run concurrently and were ordered to be given benefit of set off.
7 Incidentally, it may be noted that for the same occurrence, the present appellants' side has lodged FIR with the same police station for offences punishable under Sections 307, 325, 321 and 323 etc. of the IPC against accused side which also came to be investigated and chargesheeted by police and Sessions Case No. 35 of 2002 (old Case No. 92 of 1994) was registered. The said Sessions Case was also tried by the same judge and decided separately by the same judge. Out of that judgement Criminal Appeal No. 279 of 2005 is preferred by the convicted-accused persons, Criminal Appeal Nos. 996 of 2005 and 1005 of 2005 are the State Appeals preferred for enhancement of sentence and against the acquittal. Group of these appeals is also heard by us today along with the present set of appeals.
8 We have heard learned advocate Mr. Brahmbhatt for the appellants and learned A.P.P. Mr. K.L. Pandya for the State.
9 Learned advocate Mr. Brahmbhatt submitted that the conviction recorded by the trial Court is erroneous. According to him, there could not have been application of Sections 143, 147, 148, 149 of the IPC because without dispute both the groups had gone to the disputed field one after the other without knowledge of the other group being there. He submitted that the incident has its roots in a Civil dispute between the parties in respect of land and property. Both the groups, upon coming across each other on the disputed land, had altercation resulting into a fight and injuries to the victims. There was no chance of any premeditation or having any common intention or common object. He submitted that the evidence is not properly appreciated and therefore the conviction may be set aside. He submitted that, at the worst, it is a case of free fight and each of the accused may be held responsible for his individual act and could not have been convicted with the help of Section 149 of the IPC.
10 Learned A.P.P. Mr. Pandya submitted that the trial Court has erred in acquitting the accused in spite of the charge of unlawful assembly having been upheld while recording conviction. The entire group had gone together and therefore it constituted unlawful assembly and if some of them are convicted on that count, the other could not have been acquitted. He, therefore, submitted that the acquittal appeal may be allowed.
11 In rejoinder learned advocate Mr. Brahmbhatt submitted that there is no dispute that group of the accused persons had gone to the field together but there is no evidence of any prior meeting or discussion or meeting of minds. There is no evidence to show that they were aware about the proposed arrival of the other group. The incident had occurred because both groups came across each other at the field. Therefore, the incident is not premeditated one even as per the prosecution case and the theory of the prosecution of the accused persons constituting unlawful assembly and acting in furtherance of their common object is erroneous. The trial Court has committed an error in resorting to convict the convicted appellants with the help of Section 149 of the Indian Penal Code.
12 We have considered the rival submissions and have examined the record and proceedings in context thereof. At the outset, it may be noted that the accused persons themselves have lodged FIR in respect of the same incident making allegations against the complainant's side. Therefore, there cannot be any dispute about the presence of the accused persons at the place of incident. Similarly, the prosecution has conveniently kept silent about the injuries suffered by the accused side both in the FIR as well as in examination-in-chief of the witnesses.
13 The witnesses were put, in their cross-examination, questions regarding inter se fight between the groups and injuries having been suffered by the accused side and strange explanation comes in evidence of a witness Shankar Narayan that the accused persons suffered injury at the hands of the persons from their own group.
14 The prosecution has examined Narsinhbhai Naranbhai at Exh. 23, Shankarbhai Naranbhai at Exh. 46, Natubhai Naranbhai at Exh. 47, Sureshbhai Naranbhai at Exh. 48, Bhanuben Shankarbhai at Exh. 51 and Dr Sushil Joshi at Exh. 62. The incident has resulted in death of Manilal Naranbhai Ghodia Patel and injuries to Narsinhbhai Naranbhai, Sureshbhai Naranbhai, Bhanuben Naranbhai and Kantaben Naranbhai. Witnesses attribute accused No. 2 Hirabhai Bahadurbhai with a dhariya blow to Narsinhbhai on his head. The case of the prosecution is that although dhariya blow was given the impact was with the handle of the dhariya which is like a stick and the injury suffered by Narsinhbhai is therefore possible with hard and blunt substance. It is a C.L.W. on the frontal aspect with another C.L.W. on the middle head. Accused Hirabhai Bahadurbhai is also alleged to have caused injury to Narsinhbhai. Thus, he has caused injuries to witness Sureshbhai Naranbhai and Narsinhbhai Naranbhai. The injuries are proved through documentary evidence in the form of medical Certificate of Dr Sushil Joshi at Exh. 62.
15 So far as accused No. 3 Nareshbhai Radiyabhai is concerned, it is alleged that he was armed with an axe. He gave blow on the head of Manilal Naranbhai. This aspect is deposed by witness Narsinhbhai Naranbhai Exh. 23, Shankarbhai Naranbhai Exh. 46, Natubhai Naranbhai Exh. 47, Sureshbhai Naranbhai Exh. 48 and Bhanuben Shankarbhai Exh. 51. Postmortem notes indicate injuries suffered by the deceased. Doctor has opined that injury Nos. 6 and 7 were sufficient in the ordinary course of nature to cause death.
16 Besides accused No. 3 Nareshbhai Radiyabhai, accused No. 13 Navinbhai Koyabhai is also charged and convicted for offence of murder of Manilal Naranbhai by giving an axe blow on head. He is also alleged to have caused hurt to witness Kantaben. Evidence of eye witness has been tested on the touchstone of cross-examination by the defence. We have given a close scrutiny to the same to find that barring a few insignificant inconsistencies or lapses, the depositions are reliable and are corroborated by medical evidence.
17 Accused No. 4 Bahadurbhai Mandabhai is alleged to have been armed with sickle/axe. He is alleged to have given axe blow to Narsinhbhai Naranbhai on his shoulder. In deposition of Shankarbhai Naranbhai Exh. 46, accused No. 7 Babubhai Bahadurbhai is alleged to have given axe blow to Narsinhbhai Naranbhai. However, eye witnesses stick to their version during cross examination. Accused No. 10 Khalpabhai Lallubhai is alleged to have been armed with a stick. He has caused hurt by giving stick blow to Bhanuben Shankarbhai. Bhanuben herself has suffered injury in the form of C.L.W. Accused No. 13 is alleged to have given axe blow to deceased Maninal and caused his death. He has also caused injuries to Kantaben.
18 Trial Court taking into consideration these pieces of evidences convicted accused No. 2 Hirabhai Bahadurbhai, accused No. 3 Nareshbhai Radiyabhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 7 Babubhai Bahadurbhai and accused No. 10 Khalpabhai Lallubhai under Section 302 read with Section 149 of the IPC whereas acquitted accused No. 1 Radiyabhai Mandabhai, accused No. 5 Koyabhai Zinabhai, accused No. 6 Ratilal Koyabhai, accused No. 8 Mukeshbhai Ramanbhai, accused No. 9 Dhirubhai Lallubhai, accused No. 11 Ramanbhai Sukkarbhai, accused No. 12 Ishwarbhai Bahadurbhai, accused No. 14 Arvindbhai Koyabhai, accused No. 15 Deepakbhai Ramanbhai and accused No. 16 Jagubhai Bhikhabhai on the ground that there was no evidence against them to record conviction.
19 We have gone through the evidence and closely scrutinised the same and we find that the trial Court was justified in holding that there is no evidence against the acquitted accused except in the case of accused No. 12 Ishwarbhai Bahadurbhai where Shankarbai Naranbhai has deposed that he had thrown stone to Naran Govan from a distance of 30 feet.
20 With the above evidence, if the case is judged, what emerges is that accused persons had a civil dispute with the complainant's side and litigations were going on between the parties. On the eventful day when group of accused persons went to the spot they were unaware about the likelihood of the other group going there. Barring this incident, earlier there had not been any criminal act committed by the accused against the complainant's side. Therefore, in absence of any evidence to show that the accused persons had reason to get together and constitute an unlawful assembly for furthering their object, constitution of unlawful assembly cannot be read simply because number of accused persons is more than five and they are involved in an incident. We are, therefore, of the view that the theory of the prosecution about the accused persons having constituted an unlawful assembly in furtherance of their common object could not have been accepted by the trial Court.
21. It is not in dispute that the accused side also received injuries in the incident and they have also lodged FIR against the complainant's side here. Therefore, members of both the groups seem to have had a free exchange of assault with each other with whatever weapons they had in their hand but they had not constituted any unlawful assembly and therefore they would not be vicariously liable for the criminal act of the other. Their liability would be for their individual act and therefore the evidence in that context will have to be seen.
21.1 Accused No. 2 Hirabhai Bahadurbhai had dhariya in his hand. He is alleged to have given blow with dhariya to Narsinhbhai Naranbhai. Witnesses Narsinhbhai Naranbhai, Shankarbhai Naranbhai, Natubhai Naranbhai, Sureshbhai Naranbhai and Bhanuben Shankarbhai deposed about accused No. 2 having given dhariya blow to Narsinhbhai Naranbhai on his head and having caused hurt to Sureshbhai Naranbhai Exh. 48. He is also alleged to have caused hurt to Narsinhbhai Naranbhai. Medical evidence says that there were C.L.Ws. on his head and back. Dr Sushil Joshi has opined that the injury is possible by a stick-like weapon which is a hard and blunt substance. Accused No. 2 Hirabhai Bahadurbhai, therefore, would be liable to be punished for having caused hurt with dangerous weapon to Sureshbhai Naranbhai and Narsinhbhai Naranbhai punishable under Section 324 of the IPC.
21.2 So far as accused No. 3 Nareshbhai Radiyabhai is concerned, he is alleged to have given axe blow on the head of deceased Manilal. Postmortem note would indicate that there were two injuries on the head of the deceased which can be attributed to axe. Accused No. 3 Nareshbhai Radiyabhai, therefore, would be liable for the murder of deceased Manilal. Blows were given with axe on the head which were sufficient in ordinary course of nature to cause death and the assault is committed in a broad day light in presence of the witnesses. The trial Court was, therefore, justified in recording their conviction.
21.3 Accused No. 4 Bahadurbhai Mandabhai is alleged to have given axe blow to Narsinhbhai Naranbhai upon his head. Thus, accused No. 4 Bahadurbhai Mandabhai would be guilty for causing simple hurt. He is alleged to have armed with sickle and axe. There is no corresponding injury found on the person of the victim attributable to sickle. Therefore, his weapon can safely be accepted to be axe. He has given a blow to Narsinhbhai Naranbhai on his head. Medical evidence in this context also lends corroboration to the version of the witness. Witness Shankarbhai Naranbhai speaks about axe blow given to Narsinhbhai Naranbhai on his shoulder but there is no corresponding injury found on the shoulder of Narsinhbhai. Injuries on Narsinhbhai were C.L.Ws. and simple in nature. Accused No. 4, therefore, would be liable for having caused hurt with dangerous weapon punishable under Section 324 of the IPC.
22. Now coming to accused No. 7 Babubhai Bahadurbhai, he is alleged to have given axe blow to Narsibhai Naranbhai on head with the help of an axe. This aspect is proved through evidence of injured witness Narsinhbhai himself, Shankarbhai Naranbhai, Natubhai Naranbhai, Sureshbhai Naranbhai and Bhanuben Shankarbhai. Injury caused to Narsinhbhai is in form of C.L.W. attributable to axe. Therefore, the injury is simple in nature. He is, therefore, responsible for having caused hurt to Narsinhbhai with an axe which is dangerous weapon he is guilty of an offence punishable under Section 324 of IPC.
23. Accused No. 10 Khalpabhai Lallubhai was armed with stick. He has caused hurt to Bhanuben Shankarbhai on head and hand. Injuries are CLW on parietal region and swelling on left elbow. He is, therefore, guilty of offence punishable under Section 324 of the IPC.
24. So far as accused No. 13 Navinbhai Koyabhai is concerned, he has caused injury to the deceased Manilal on his head. He has also caused hurt to Kantaben. Though Kantaben is not examined as witness, her injury is proved through medical evidence. Injury that accused No. 13 Navinbhai Koyabhai caused to deceased Manilal is on head. The weapon used is axe. He would, therefore, be guilty of murder of Manilal along with accused No. 3 Nareshbhai Radiyabhai. He would also be guilty of causing hurt to Kantaben punishable under Section 324 of the IPC.
25. Accused No. 1 Radiyabhai Mandabhai, accused No. 5 Koyabhai Zinabhai, accused No. 6 Ratilal Koyabhai, accused No. 8 Mukeshbhai Ramanbhai, accused No. 9 Dhirubhai Lallubhai, accused No. 11 Ramanbhai Sukkarbhai, accused No. 12 Ishwarbhai Bahadurbhai, accused No. 14 Arvindbhai Koyabhai, accused No. 15 Deepakbhai Ramanbhai and accused No. 16 Jagubhai Bhikhabhai are concerned, there is not an iota of evidence except that as per the say of Shankarbhai Naranbhai accused No. 12 Ishwarbhai Bahadurbhai was seen throwing stones towards Narangovan from a distance of 30 feet. Narangovan is not examined as witness and there is no medical evidence to indicate any injury to Naran Govan. The version of Shankarbhai Naranbhai to that extent cannot be accepted. Resultantly, these accused persons have to be held to have been rightly acquitted by the trial Court.
26. It is true that the trial Court resorted to Section 149 of the IPC holding that the accused had constituted unlawful assembly and had acted in furtherance of common object, we are of the view for the reasons stated hereinabove that story of unlawful assembly is not believable. Neither side knew that the other side is likely to be there at the place and there is no evidence to show that the accused persons had any special reason to commit assault on the complainant's side. Dispute was going on between them for a long time and nothing had happened. It is only when two groups came across each other at the spot that it resulted into a quarrel and fight. There was no time for the accused persons to constitute an unlawful assembly and to have a common object. It is clear that both the sides have attacked each other freely. It is, thus, in our opinion a clear case of free fight and each of the accused would be responsible for his own individual act. Therefore, trial Court was right in acquitting those persons against whom there was no evidence. However, the trial Court committed error in convicting the convicted appellants for the offence of murder with the help of Section 149 of the IPC. The accused persons would be responsible for their own individual acts as discussed hereinabove.
27. We, therefore, by partly allowing the appeal, alter the conviction as under:
27.1 Conviction of accused No. 2 Hirabhai Bahadurbhai is altered to one punishable under Section 324 of IPC for having caused hurt to Sureshbhai Naranbhai and Narsinhbhai Naranbhai with dangerous weapon like dhariya.
27.2 Accused No. 3 Naresh Radiyabhai and accused No. 13 Navinbhai Koyabhai are convicted for the offence of murder of Manilal Naranbhai. Accused No. 13 is also convicted for the offence of causing hurt to Kantaben with axe which is a dangerous weapon which is punishable under Section 324 of IPC.
27.3 Conviction of accused No. 4 Bahadurbhai Mandabhai is altered to one punishable under Section 324 of IPC for having caused hurt to Narsinhbhai Naranbhai with axe.
27.4 Conviction of accused No. 7 Babubhai Bahadurbhai is altered to one punishable under Section 324 of IPC for having caused hurt to Narsinhbhai Naranbhai on head with axe which is a dangerous weapon.
27.5 Conviction of accused No. 10 Khalpabhai Lallubhai is altered to one punishable under Section 324 of the IPC for having caused hurt to Bhanuben with stick.
27.6 Accused No. 3 and 13 are sentenced to imprisonment for life with fine of Rs. 1000/- each and in default, to undergo simple imprisonment for 2 months. Accused No. 13 is also ordered to suffer rigorous imprisonment for one year with fine of Rs. 500/- and in default to undergo simple imprisonment for 15 days.
27.7 Conviction of accused No. 2 Hirabhai Bahadurbhai, accused No. 3 Nareshbhai Radiyabhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 7 Babubhai Bahadurbhai, accused No. 10 Khalpabhai Lallubhai and accused No. 13 Navinbhai Koyabhai for offence punishable under Sections 143, 147, 148, 504 read with section 149 of the IPC is set aside.
27.8 Conviction of accused No. 2 Hirabhai Bahadurbhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 7 Babubhai Bahadurbhai and accused No. 10 Khalpabhai Lallubhai for offence punishable under Section 302 read with Section 149 of the IPC is set aside.
27.9 Conviction of accused No. 10 Khalpabhai Lallubhai and accused No. 13 Navinbhai Koyabhai for offence punishable under Section 324 of the IPC is confirmed.
27.10 Conviction of accused No. 2 Hirabhai Bahadurbhai, accused No. 3 Nareshbhai Radiyabhai, accused No. 4 Bahadurbhai Mandabhai, and accused No. 7 Babubhai Bahadurbhai for offences punishable under Section 324 read with Section 149 is set aside and accused Nos. 2 4 and 7 are convicted for offence punishable under Section 324 of IPC. Conviction of accused Nos. 2 and 7 for offence punishable under Section 325 of IPC is confirmed along with sentence.
27.11 Conviction of accused No. 3 Nareshbhai Radiyabhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 10 Khalpabhai Lallubhai and accused No. 13 Navinbhai Koyabhai for offence punishable under Section 325 read with Section 149 of the IPC is set aside.
27.12 So far as the offence for which the conviction of the appellants-accused is confirmed, there shall be no change in the sentence.
27.13 The appeal filed by the convicted appellants would thus stand partly allowed.
28. The acquittal appeal filed by the State stands dismissed for the foregoing reasons.
29. We had called for report of the Probation Officer, Valsad District in respect of the appellants in Criminal Appeal No.115 of 2005, who are accused Nos. 2, 3, 4, 7, 10 and 13 respectively. The reports are received. We have examined the reports. The reports in respect of each of these appellants are positive. However, as stated earlier, original accused No.3-Nareshbhai Radiyabhai and original accused No.13-Navinbhai Koyabhai are convicted for offence of murder punishable with imprisonment for life and, therefore, they would not be entitled to the benefits of the provisions of Probation of Offenders Act. However, original accused No. 2 Hirabhai Bahadurbhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 7 Babubhai Bahadurbhai and accused No. 10 Khalpabhai Lallubhai would be entitled to the benefit of the provisions contained in Probation of Offenders Act they having been convicted for offence punishable under Section 324 of IPC and there being a positive report of the Probation Officer in their favour.
30. In light of the foregoing discussion, original accused No. 2 Hirabhai Bahadurbhai, accused No. 4 Bahadurbhai Mandabhai, accused No. 7 Babubhai Bahadurbhai and accused No. 10 Khalpabhai Lallubhai are granted benefit of provisions of Probation of Offenders Act and they shall execute requisite bond of Rs.10,000/- (Rupees ten thousand) of good conduct before authorities for a period of two years and on execution of such bond of good conduct, the sentence awarded to them shall not be executed on condition that they abide by the bond of good conduct. In case of failure in keeping good conduct, accused Nos.2, 4, 7 and 10 shall be required to undergo the sentence. They shall make the payment of fine imposed on them within a period of one week for availing benefit of this judgment.
(A.L. DAVE, J) (BANKIM N. MEHTA, J) (pkn) Top