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2011 DIGILAW 410 (GUJ)

Vaghri Jenabhai Khumabhai v. The State of Gujarat

2011-05-09

A.L.DAVE, BANKIM N.MEHTA

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Judgment A.L. Dave, J.—The present appeal arises out of the a judgment and order dated 30.6.2005, rendered by Additional Sessions Judge, Mehsana, in Sessions Case No. 12 of 2005, convicting the appellants – original accused Nos. 1, 2 and 5, for the offences punishable under Sections 325 and 324 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. As per the prosecution case, an unfortunate incident occurred on 10.6.2004 at about 7.30 p.m. at the house of Amratbhai Jenabhai Vaghari - accused No. 2 before the Trial Court, where the complainant and his companions, all armed with weapons like sword, iron pipe and sticks, had gone committed assault. The present appellants are alleged to have used dharia, pipe and bricks for committing assault on Rameshbhai Shivabhai Vaghari, Prahladbhai Rameshbhai Vaghari, Lalabhai Shivabhai Vaghari, Sureshbhai Shivabhai Vaghari, Vaghari Vishnubhai @ Goga Shivabhai. 2. The present case is arising out of the same occurrence about which the present appellants’ side lodged an FIR with Vadnagar Police Station, which has been registered at CR No. I-53 of 2004, against the complainant’s side, for offences punishable under Sections 302, 147, 148, 149, 325 and 326 of the Indian Penal Code read with Section 135 of the Bombay Police Act, alleging that the said group had committed assault. Before the Trial Court, there were five accused persons. Out of whom, accused No. 3 Ramanbhai Jenabhai Vaghari and accused No. 4 Vaghari Vinodbhai Jenabhai came to be acquitted and accused No. 1 Vaghari Jenabhai Khumabhai, accused No. 2 Vaghari Amrutbhai Jenabhai and accused No. 5 Vaghari Kamleshbhai, came to be convicted by judgment impugned in the present appeal. 3. Learned Advocate Mr. J.V. Japee appearing for the appellants submitted that it was the complainant’s side who were the assailants and committed assault on the accused persons, and in that incident, one person from the accused side-Dineshbhai Jenabhai Vaghari lost his life, for which, the other side has been convicted. If panchnama of place of incident is seen, it is clear that, the incident occurred near the house of accused No. 2 Vaghari Amrutbhai Jenabhai. It is also clear that a group of eight persons, all armed with weapons, had come and committed assault. If panchnama of place of incident is seen, it is clear that, the incident occurred near the house of accused No. 2 Vaghari Amrutbhai Jenabhai. It is also clear that a group of eight persons, all armed with weapons, had come and committed assault. The incident had occurred on account of a verbal encounter, which took place at about 11 O’clock in the morning at a flour mill between the wife of accused No. 2 Amrutbhai Jenabhai and wife of one Dilipbhai Shivabhai Vaghari, who is one of the accused in the cross case. 4. On overall reading of the evidence, it is clear and it has been held by the Trial Court in the cross case that the complainant’s side was aggressors and, at least, four persons came to be convicted out of eight, one for the offence of murder and rest for the offences under Sections 324 and 325 of the IPC read with Section 135 of the Bombay Police Act. This verdict of the Trial Court has been confirmed by this Court by a separate judgment passed in Criminal Appeal Nos. 1446, 1777 and 1919 of 2005, rendered today. 5. When a group persons commit assault with deadly weapons, the persons, on whom the assault is committed, are bound to react to protect themselves. In fact, they enjoyed right to protect their persons and property or to protect person of somebody else. This actually seems to have happened in the instant case. The complainant’s side, all were armed with deadly weapons like sword, sticks and iron pipes, committed the assault and in retaliation, the appellants used whatever weapons they could lay their hands on from the place of incident and tried to protect their persons, but in vain. One person lost his life and three others had suffered severe injuries. It is true that, in the same incident,the complainant’s side had also suffered several injuries. In the opinion of this Court, therefore, the appellants case that they acted in exercise of their right of private defence, deserves to be accepted and the same is accepted. Here in the instant case, the complainant’s side had suffered grievous injuries, as against that, the appellants’ side has lost one person and several persons have suffered grievous injuries. In the opinion of this Court, therefore, the appellants case that they acted in exercise of their right of private defence, deserves to be accepted and the same is accepted. Here in the instant case, the complainant’s side had suffered grievous injuries, as against that, the appellants’ side has lost one person and several persons have suffered grievous injuries. We are, therefore, of the view that the appellants acted in exercise of their right of private defence and no criminality can be attached to them. The appeal deserves to be allowed. 6. In the result, Appeal is allowed. The judgment and order dated 30.6.2005 rendered by the Additional Sessions Judge, Mehsana, in Sessions Case No. 12 of 2005, convicting the appellants is hereby set aside and the appellants are acquitted of the charges levelled against them. Their bail bonds shall stand cancelled. Fine, if any paid, shall be refunded to them. P P P P P