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2010 DIGILAW 116 (GUJ)

Karanbhai Nathabhai Bharwad v. State of Gujarat

2010-03-03

JAYANT PATEL, RAJESH H.SHUKLA

body2010
Judgment Jayant Patel, J.—The present appeal is directed against the judgement and order dated 15.10.2007 passed by the learned Sessions Judge in Sessions Case No. 36/2001, whereby the appellant-accused have been convicted for the offences under Section 147 read with Section 148 of IPC and the accused are also convicted for the offences under Section 366 read with Section 304 of IPC and the sentence is imposed of one year R.I., with the fine of Rs. 2,000/-, 2 (two) years R.I., with the fine of Rs. 3,000/-, 10 (ten) years R.I., with the fine of Rs. 5,000/-, and 10 (ten) years R.I., with the fine of Rs. 5,000/- for the respective offences and all punishments are ordered to be undergone concurrently. 2. It appears that as per the prosecution case on 17.2.2001, when the complainant Nimuben Gobarbhai Radadiya with her mother were present at their residence and at that time, the brother of the complainant and the father of the complainant were at a different place, at about 7 O’Clock, Accused No. 1 (A-1) together with about 7 persons came at the residence with the weapons and two persons of the said assembly, dragged the complainant into the street and the other persons were standing at that time and were shouting to take away the complainant. At that time, the complainant started shouting for the help and one Rajabhai Bhikhabhai Bharwad and Hematbhai Karsanbhai Balodiya and other neighbours came forward. The said Rajabhai sustained injuries of the blow given by Karanbhai Nathabhai Bharwad - A-1 and since the complainant was dragged, her clothes were torn off and the accused also sustained injuries. Thereafter, they ran away. The complaint was filed with Upleta Police Station vide C.R. No. 24/2001. The Police investigated into the complaint and the charge-sheet was also filed. It may also be recorded that the accused No. 1 also filed cross-complaint later on vide C.R. No. 25/2001, but the pertinent aspect is that in the said complaint there is no reference whatsoever to the injuries caused to Rajabhai. It also appears that thereafter, Rajabhai, who sustained serious injuries, had succumbed to the injuries and the additional charge of 302 of IPC was added in the complaint. 3. It also appears that thereafter, Rajabhai, who sustained serious injuries, had succumbed to the injuries and the additional charge of 302 of IPC was added in the complaint. 3. The prosecution in support of the charge at the time of trial led oral evidence and examined 26 witnesses, the details of which are mentioned by the learned Sessions Judge at paragraph 3 of the judgement. The prosecution also produced evidence of 39 documents, the details of which are also mentioned in the said paragraph by the learned Sessions Judge. The learned Sessions Judge thereafter recorded the further statements of the concerned accused, wherein the accused denied accusation made against them and in the further statements, it was stated that a false case is filed against them. The learned Sessions Judge heard the prosecution as well as the accused and found the case for conviction under Section 147-148-149-366-304 of IPC read with 235(2) of Cr.P.C. and on the aspects of punishment, the learned Sessions Judge further heard the accused and ultimately imposed the sentence as referred to herein above in earlier paragraph. It is under these circumstances, the present appeal before this Court. 4. We have heard Mr. Shastri, learned Counsel appearing for all the accused and we have also heard Mr. K.L. Pandya, learned APP for the State. 5. The complainant, who is an injured eye-witness and also victim, has been examined as PW-1 and her deposition has been recorded at Ex.14. She has categorically stated that A-1, who was having wooden handle of spade (Hatho) in his hand, had given blow to Rajabhai, who was also blind and Rajabhai had fallen down. The said version of the complainant is supported by the Inquest Panchnama of the dead-body of the deceased Rajabhai as well as the medical evidence. The injury on the head is supported by the evidence of Dr. Rajendrabhai Shantilal Pandya, PW-21 (Ex.59) and he has deposed that the cause of the death is due to internal injuries on the scull and the vital part of the brain and he has stood by the P.M. Report (Ex.60). There is further corroboration by the discovery of the weapon from Accused Nos.4 and 5 (A-4 and A-5) and the said weapon (handle-lock spade) was used for giving blow as stated by the complainant and the said weapon is also identified by the complainant in her deposition. There is further corroboration by the discovery of the weapon from Accused Nos.4 and 5 (A-4 and A-5) and the said weapon (handle-lock spade) was used for giving blow as stated by the complainant and the said weapon is also identified by the complainant in her deposition. Even if it is considered that the accused did not go for causing death of Rajabhai, at the most, it may lack prior intention on the part of A-1. However, as the death has been caused and Rajabhai has died on account of the fatal blow given by A-1, which was a serious and on vital part of the body, the learned Sessions Judge appears to be right in convicting A-1 for the offence under Section 304 of IPC. 6. The learned Sessions Judge has totally lost sight of the fact that so far as the offence under Section 304 is concerned, it could only be attributed to A-1 and there was no evidence at all as led by the prosecution, of pre-medication for causing death of Rajabhai by any other accused, nor the intention of unlawful assembly could be said as for causing death of Rajabhai either prior to the incident or at the scene of the offence. Therefore, the finding of the learned Sessions Judge for involvement of the other accused namely; A-2 to A-5 for the offence under Section 304 for the commission of offence to that extent cannot be sustained. 7. The second charge deserves to be considered for the conviction of A-1 as well as A-2 to A-5 for the offence under Section 366 read with Section 149 of IPC. In order to examine the said aspect, if the evidence on record as led by the prosecution is considered, it appears that the fact of all the accused going in a car to the place of the victim - complainant has remained un-controverted. The factum of dragging the victim by two accused, A-2 and A-3, in presence of A-1 has also been proved and supported by the evidence of the complainant as well as the recovery of the torn clothes of the complainant. The factum of dragging the victim by two accused, A-2 and A-3, in presence of A-1 has also been proved and supported by the evidence of the complainant as well as the recovery of the torn clothes of the complainant. Further, so far as A-4 and A-5 are concerned, the complainant in the complaint as well as in the FIR and in the deposition before the Court has stood by the say that they were shouting for kidnapping of the victim - complainant at the time when A-2 and A-3 were physically dragging the victim in presence of A-1. The other pertinent aspect is that the discovery of weapon used by A-1 and other accused were at the instance of A-4 and A-5 and the said handle -lock spade was found with the blood stain and such articles were also identified by the complainant in her deposition. There is also support of the aforesaid evidence in the FSL Report, wherein it was found that it contained human blood. Under these circumstances, it could be said that all the accused had visited the place of the complainant - victim for kidnapping of her and they also actually attempted to kidnap her by dragging her and in such attempt role was played by A-2 and A-3 was in dragging the victim physically and A-4 and A-5 was for instigating A-2 and A-3 for kidnapping her by instigating and also by carrying away the weapon used for applying the force at the time of kidnapping. The aforesaid evidence as led by the prosecution appears to us being satisfactory for showing common intention of all the accused, who were five in number being unlawful assembly for commission of the offence of kidnapping under Section 366 of IPC. 8. However, the learned Counsel for the appellant-accused is right in submitting that because of the intervention by Rajabhai and other village people the victim had not been kidnapped and, therefore, at best, it could be said that it was a case for attempt to kidnap the victim, which did not materialize. 9. The learned APP has not been able to controvert the aforesaid position by showing any evidence to the contrary. 10. Even as per the deposition of the complainant, she was dragged to some extent, but there was intervention by Rajabhai and other village people and thereafter the accused had run away. 9. The learned APP has not been able to controvert the aforesaid position by showing any evidence to the contrary. 10. Even as per the deposition of the complainant, she was dragged to some extent, but there was intervention by Rajabhai and other village people and thereafter the accused had run away. This, in our opinion, could be said as an attempt to kidnap the victim, which was the pertinent aspect required to be taken into consideration by the learned Sessions Judge while concluding that whether the offence under Section 366 was committed or not. If the kidnapping had actually not taken place, but it was by way of an attempt to kidnap, the provisions of Section 511 of IPC would be attracted, which provides for one-half of the longest term of imprisonment provided for respective offence. Section 366 of IPC provides for the punishment of 10 years in a case for commission of offence of kidnapping. Therefore, half of the punishment would be five years in a case where there is an attempt to commit offence of kidnapping. 11. In view of the aforesaid, it appears to us that the learned Sessions Judge has committed error in convicting the accused for the offence under Section 366 without considering the aspects of an attempt to commit offence of kidnapping and not considering the provisions of Section 511 of IPC for conviction as well as for imposition of sentence, therefore, the judgement and order passed by the learned Sessions Judge to that extent deserves to be set aside. However, it appears to us that as per the evidence led by the prosecution and the observations made hereinabove, the common intention for commission of offence of attempt to kidnap of all the accused is satisfactorily demonstrated and also since it was for commission of offence of attempt to kidnap, the ingredients of Section 149 of IPC would stand satisfied to that extent. 12. It has not come on record in any of the evidences led by the prosecution that there was any intention of rioting by the accused, which would be required to be taken into consideration while tracing the guilt under Section 148 of IPC. The fact that they were in possession of handle-lock spade or other weapon by itself would not constitute to offence under Section 148 of IPC. The fact that they were in possession of handle-lock spade or other weapon by itself would not constitute to offence under Section 148 of IPC. The possession of the weapon by all the accused, even if considered, is required to be tested and considered in light of the conduct at the scene of the offence and the consequential attempt or the action to commit offence. The learned APP has not been able to show any evidence, which was led by the prosecution to prove the charge of Section 148 of IPC, nor is there any appropriate discussion by the learned Sessions Judge on the said aspects. Therefore, it appears to us that the learned Sessions Judge has committed error in convicting the accused for the offence under Section 147 read Section 148 of IPC, hence the judgement and order passed by the learned Sessions Judge could be said erroneous to that extent. 13. The learned Counsel for the appellant-accused emphatically contended that in a case of attempt to kidnap, this Court may not consider the case for imposition of half of the sentence provided for the offence under Section 366 of IPC. He submitted that the discretion vests to the Court. In the submission of the learned Counsel for the appellants, the factum of sustaining injuries by A-1- and A-2, if considered, it may call for the lesser punishment. He also submitted that so far as A-4 and A-5 are concerned, they did not actually play any role and there was no attributed role alleged by the complainant to A-4 and A-5. In the submission of the learned Counsel for the appellants, it was a case for taking a lenient view, therefore, this Court may impose sentence to the extent of punishment undergone, which as per the report of the learned APP is 2 years 4 months and 17 days as on 2nd March, 2010. 14. We are not impressed by any of the submissions made by the learned Counsel for the appellants. 14. We are not impressed by any of the submissions made by the learned Counsel for the appellants. The reason being that in the attempt to kidnap made by all the accused, one person, Rajabhai, who had intercepted to protect the victim has lost his life, because of the vital blow given by A-1; the second aspect is that it was an attempt to kidnap a lady with whom A-1 had the engagement, but she was not ready to marry and the force by dragging her was applied by A-2 and A-3 at the instance of A-1, who was desirous to compel her to marry with him. A-4 and A-5 were not only present, but they have instigated the action by prompting the other accused to drag her and to kidnap her and further they have actively played role in commission of offence by carrying the weapon used for giving blow to Rajabhai by A-1. 15. At this stage, we may advert certain observations made by the Apex Court in the case of Koppula Venkat Rao vs. State of A.P., reported in (2004) 3 SCC, 602 on the aspects of gravity of punishment and the exercise of power for imposition of sentence. The Apex Court in the said decision at paragraph 8, inter alia, observed as under:— “8. ...Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.” 16. If we consider the totality of the circumstances and the factum of losing life by the person, who intercepted and helped the victim coupled with the circumstances of attempt to kidnap a lady to compel her to marry with one of the accused, it would not be a case for imposition of lesser punishment than half provided for commission of the offence. Therefore, the contention of the learned Counsel for the appellants cannot be accepted. 17. In view of the aforesaid, the conviction made and the sentence imposed by the learned Sessions Judge upon Accused No. 1, Karanbhai Nathabhai Bharwad under Section 304 of IPC is confirmed, but shall remain set aside for the other Accused Nos.2 to 5 for the offence under Section 304 of IPC. The conviction made and the sentence imposed upon all the Accused for the offence under Section 149 read with Section 366 is modified to the extent that there shall be conviction under Section 149 read with Section 366 read with Section 511 of IPC for the attempt to kidnap by unlawful assembly of all the accused and the sentence imposed would be of 5 (five) years R.I. The conviction made and the sentence imposed by the learned Sessions Judge for the offence under Section 147 read with Section 148 of IPC upon all the accused is quashed and set aside. The other part of the judgement and order passed by the learned Sessions Judge for undergoing the punishment concurrently shall remain unaltered and confirmed. The Appeal is partly allowed to the aforesaid extent.