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2011 DIGILAW 436 (GUJ)

Rabari Jivabhai Munabhai v. State of Gujarat

2011-05-12

Z.K.SAIYED

body2011
JUDGMENT : Z.K. Saiyed, J. The appellants - original accused have filed this Appeal, through Jail, against the Judgment and order of conviction and sentence dated 24.02.2005 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No.4, Junagadh, in Sessions Case No. 64 of 2001, whereby the learned Additional Sessions Judge has held the appellants - accused guilty and convicted them (i) for the offence under Sections 147, 148, 149, 307 of I.P. Code and sentenced them to suffer Rigorous Imprisonment for 6 years with fine of Rs. 5,000/- each i/d to undergo further RI for one year, and (ii) for the offence under Sections 323, 324 read with Sections 147, 148, 149 of I.P. Code and sentenced them to suffer RI for 2 years with fine of Rs. 3,000/- each i/d to undergo further RI for 6 months. The learned Judge has ordered that all the sentences shall run concurrently by the appellants. However, vide the impugned judgment, the learned Additional Sessions Judge has acquitted the appellants - accused for the offence punishable under Sections 504, 506(2) of I.P. Code and Section 135 of the Bombay Police Act. 2. The brief facts of the case of prosecution are that on 18.4.2001 at about 12.30 hours, the accused assembled unlawfully at Rabarivas Naka of village Thapla with dangerous weapons with a common object to cause injuries to the complainant and witnesses. It is alleged that the accused - appellants with an intention to cause injuries to the complainant and witnesses formed the unlawful assembly and attacked the complainant and the witnesses. It is alleged that accused Nos.3 & 4 have caused serious injuries with stick, wrapped with iron ring (Bharvadi Dang), on the head of witness Kana Bhura, accused Nos.1 & 2 had beaten the complainant and witnesses with sticks and caused injuries and accused No.5 also assaulted the complainant and witnesses with an Axe and caused injuries to the complainant and witnesses and thereby committed aforesaid offences. Thereafter the complaint was lodged against the accused before Bantva Police Station registered as CR No.I - 7 of 2011 for the offences punishable under Sections 307, 147, 148, 149, 323, 324, 504, 506(2) of I.P. Code and Section 135 of the Bombay Police Act. 3. Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. 3. Necessary investigation was carried out by the Police. The statements of the complainant and other witnesses were recorded. The injured were shifted to the hospital. Thereafter, after completion of investigation, the chargesheet against the accused persons came to be submitted before the learned Magistrate's Court. As the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. To prove the case against the accused, the prosecution has examined 15 witnesses and also relied upon in all 13 documents and at the end of trial, after recording the statement of the accused under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge held the appellants - accused guilty of the offences charged against them and awarded sentence as narrated herein above. 5. Being aggrieved by and dissatisfied with the aforesaid Judgment and order of conviction and sentence, the appellants - accused have preferred this Appeal. 6. Heard learned advocate Mr. Avinash Thakkar, appearing on behalf of the appellants - accused and learned APP Mr. H.L. Jani on behalf of the respondent - State. I have gone through the Judgment and order passed by the trial Court. I have also considered the documents produced on the record of the case. 7. Learned Advocate Mr. Thakkar, appearing on behalf of the appellants - accused, has contended that the appellants - accused have not committed any offence as alleged against them. Mr. Thakkar has read the charge (Exh.1) and has contended that from the contents of the charge, the panchnama of place of offence (Exh.26) is required to be considered. He has contended that looking to the place of panchnama, it appears that blood recovered from the place is a cement road which creates some doubt. He has contended that there is no mud to show the presence of blood which was found from the place of offence and the same creates doubt and, therefore, panchnama of place of offence is doubtful and cannot be accepted in evidence. Mr. Thakkar has contended that the evidence of P.W. 1 & 2 is that of the Medical officers. They are material witnesses of this case. Mr. Mr. Thakkar has contended that the evidence of P.W. 1 & 2 is that of the Medical officers. They are material witnesses of this case. Mr. Thakkar has contended that from the depositions of these witnesses, it clearly appears that the injuries received by the injured witnesses are simple in nature and, therefore, the accused cannot be held guilty of the offence punishable under Section 307 of I.P. Code. He has read the oral evidence of P.W. 1 - Dr. Nilesh Samatbhai Makwana (Exh.13) and also read the Injury Certificate issued by the medical Officer in respect of injured witness Kana Bhura. As per Injury Certificate, injured Kana Bhura has received (i) CLW on temporal region of 8 CM in size; (ii) CLW on parietal region of 3 CM in size, (iii) injury over back of chest left side causing abrasion of 2 CM x 2 CM, (iv) injury over back on right side from right middle of clavicle to 12th vertebra causing bruising, and (v) blunt injury on left leg bruising of 2 CM x 2 CM. Mr. Thakkar has, therefore, contended that looking to the Injury Certificate it clearly appears that the injuries sustained by injured Kana Bhura were simple in nature and that injuries cannot be considered as serious injuries on the vital part of the body. He has contended that in the cross examination, this witness has clearly admitted that injuries No.1 and 2 received by the injured Kana Bhura can be possible by sudden fall on the cement road or by pelting of stone by somebody causing injury on the head. He has contended that looking to the evidence of P.W. 1 - Medical Officer, all the injuries can be possible by sudden fall by injured Kana Bhura on the road or by the stone. Mr. Thakkar has also read the injury certificate in respect of another injured Kana Raja which shows that the said injured witness has received (i) CLW on head 6 CM in size on temporal region; (ii) pain on left shoulder joint, by injury with blunt object. He has contended that looking to the medical certificate, the injuries received by witness Kana Raja are also simple in nature. He has contended that looking to the medical certificate, the injuries received by witness Kana Raja are also simple in nature. He has, therefore, contended that looking to the Medical Certificate, it clearly appears that the injuries received by the injured are simple in nature and, therefore, ingredients of the offence punishable under Section 307 of I.P. Code will not be attracted. Mr. Thakkar has contended that looking to the injury received by injured Jagdish Abhabh, it is simple in nature and can be possible by hard and blunt substance. He has contended that P.W. 1 - Dr. Nilesh Manubhai Makwana (Exh.13) has examined all the injured witnesses and issued certificates vide Exh. 14, 15 & 16 respectively. Mr. Thakkar has read the cross examination of this witness and contended that even from the opinion of this witness, the injuries can be possible by hard and blunt substance. Therefore, probable defence is also made out from the cross examination of this witness and, therefore, the present case does not fall within the purview of Section 307 of I.P. Code. Therefore, the conviction imposed upon the appellants - accused by the learned Judge for the offence under Section 307 of I.P. Code may be quashed. 8. Learned Advocate for the appellants has read the oral evidence of P.W. 2 - Dr. Narendrakumar Narandas Hediya (Exh. 17) and contended that this witness has examined injured Kana Bhura and injured Kana Raja and also issued Medical Certificates vide Exh.19 & 20 respectively. With regard to injury received by injured Kana Bhura Vadhiya, the doctor has issued Certificate which shows that (i) about 3" long stitch wound on left parietal region oblique; (ii) stitch wound 1-1/2" long on perito occipital region. Posteriorly medially part of head oblique; (iii) C.L.W. 1/4" x 1/4" x 1/4" on right parietal region; (iv) Reddish brown colour bruise 3" x 2" on post side and right lower leg u/3; (v) reddish colour bruise 2" x 1" on right leg L/3 posterior; (vi) Reddish colour two parallel bruise above downward about 5" long on middle part of back; (vii) Reddish colour bruise 2" x 2" on left scapular region left side of back; and (viii) Reddish colour bruise 3" x 2" on right shoulder. The doctor has also examined injured Kana Raja and found the injuries, viz. The doctor has also examined injured Kana Raja and found the injuries, viz. (i) 2" long stitch wound on left parietal region oblique, and (ii) complain of pain on left side of shoulder. No external injuries are found. Mr. Thakkar has contended that from the injury certificates of these two injured, it clearly appears that the injuries were simple in nature and, therefore, the learned trial Judge has grossly erred in holding the appellants guilty of the offence under Section 307 of I.P. Code. 9. Learned Advocate Mr. Thakkar has then read the evidence of P.W. 3 - Bhimabhai Giganbhai (Exh.23) - Circle Inspector, who has prepared the map of the place of offence. He has contended that from the evidence of this witness it clearly appears that this witness has prepared the map of place of offence only on 20.9.2004 i.e. after about 3-1/2 years of incident. This witness has categorically admitted in his cross examination that after he came to be served with the witness summons, he prepared map of place of offence. He has contended that the alleged incident has occurred on 18.4.2001 and after a long delay of about 3-1/2 years the witness has prepared the map of place of offence which itself creates doubt and, therefore, the case of prosecution is not believable. Mr. Thakkar has also read the evidence of P.W.4 - Hareshbhai Govindbhai (Exh.25), who is panch witness of place of incident. Mr. Thakkar has contended that this witness is known to the injured witnesses and, therefore, his evidence is not trust-worthy and reliable. He has also read the panchnama of place of offence (Exh.26) and contended that looking to the contents of panchnama, the place of offence creates some doubt. He has also read the oral evidence of P.W.5 - Arvindbhai Jinabhai (Exh.27), who is panch witness of panchnama (Exh.28) and contended that this witness is also an interested witness and he has not proved the contents of panchnama beyond reasonable doubt. 10. Mr. Thakkar has contended that P.W.6 - Samjibhai Kanjibhai (Exh.29) and P.W.7 - Mansukhnath Shivnath Bavaji (Exh. 30) both are panch witnesses of discovery of weapons and both the witnesses have not supported the case of prosecution and turned hostile. Thereafter, Mr. Thakkar has read the oral evidence of P.W.8 - Jagdishbhai Abhabhai (Exh.31), who is the complainant. Mr. 10. Mr. Thakkar has contended that P.W.6 - Samjibhai Kanjibhai (Exh.29) and P.W.7 - Mansukhnath Shivnath Bavaji (Exh. 30) both are panch witnesses of discovery of weapons and both the witnesses have not supported the case of prosecution and turned hostile. Thereafter, Mr. Thakkar has read the oral evidence of P.W.8 - Jagdishbhai Abhabhai (Exh.31), who is the complainant. Mr. Thakkar has contended that the evidence of this witness is not reliable and trust-worthy. He has read the complaint (Exh.32) given by the complainant and contended that from the contents of the complaint, registration date and time of offence, it clearly establishes that the name of the present appellants - accused are concocted by this witness. He has contended that looking to the evidence of this witness all the injured persons are proved to be the aggressors and assailants. He has read the deposition of this witness and contended that in cross examination, in Para - 4, this witness has deposed that they have seen the accused at a distance of 10 ft. and at that time they do not feel that the appellants were standing there for quarrelling. The conduct of this witness shows that due to aggressiveness, sudden quarrel took place. Therefore, the question of sudden provocation is also applicable in the facts of this case. He has contended that there was incident of stone pelting also and due that act of the accused, the injured might have received injuries. 11. Mr. Thakkar has then read the oral evidence of P.W.9 - Kanabhai Bhurabhai (Exh.33), who has received injuries in the alleged incident, and contended that the evidence of this witness is also not reliable and trust-worthy and he has fabricated concocted story to wrongly book the appellants - accused in the commission of offence. He has also contended that the case history which was written by the Medical Officer is not given by injured persons. Mr. Thakkar has also read the oral evidence of P.W.10 - Kanabhai Rajabhai (Exh. 34) and contended that from the oral evidence of this witness also the prosecution could not establish its case beyond reasonable doubt. Mr. He has also contended that the case history which was written by the Medical Officer is not given by injured persons. Mr. Thakkar has also read the oral evidence of P.W.10 - Kanabhai Rajabhai (Exh. 34) and contended that from the oral evidence of this witness also the prosecution could not establish its case beyond reasonable doubt. Mr. Thakkar has read the evidence of P.W. 11 - Devanand Mensibhai (Exh.35) and contended that this witness is shown by the prosecution as an eye witness, but, he is an interested witness and from the cross examination also it is established that the story narrated by this witness is not reliable and his evidence may be considered as concocted evidence. Mr. Thakkar has also read the evidence of P.W.12 - Devabhai Hamirbhai (Exh.36) and contended that from the evidence of this witness, it is not proved beyond reasonable doubt as to what was the role played by each of the appellants - accused to cause injury to the injured witnesses. He has contended that from the oral evidence of this witness, the defence has established its defence that the presence of this witness is doubtful and from the evidence of this witness the prosecution has not established its case beyond reasonable doubt. 12. Mr. Thakkar has then read the evidence of P.W.13 - Nitinbhai Kantilal (Exh.38), who was at the relevant time Head Constable in Bantva Police Station. This witness has deposed that on receipt of Yadi (Exh.39), he had visited the Government Hospital, Bantva and complaint (Exh.32) was taken by him. Mr. Thakkar has contended that the time of receiving Yadi and the time of registering the complaint is doubtful. He has then read the evidence of P.W.14 - Merambhai Bhojabhai (Exh.41), who, at the relevant time, was a Senior Police Constable, and the evidence of P.W.15 - P.S.I. Laljibhai Damjibhai Kanan (Exh.48), who has carried out the investigation in the matter. He has contended that the investigation is totally biased. 13. Mr. Thakkar has, therefore, contended that looking to the evidence of prosecution witnesses as well as the medical evidence, it is clearly established that the prosecution has failed to establish its case beyond reasonable doubt. He has contended that the investigation is totally biased. 13. Mr. Thakkar has, therefore, contended that looking to the evidence of prosecution witnesses as well as the medical evidence, it is clearly established that the prosecution has failed to establish its case beyond reasonable doubt. The prosecution has also failed to prove that the appellants - accused are the members of unlawful assembly and there was common intention of the appellants - accused to assault the complainant and the prosecution witnesses and to cause serious injuries to the witnesses and the complainant. Mr. Thakkar has read the legal provision regarding unlawful assembly from the Penal Code and contended that the presence of appellants - accused at the place of offence also creates some doubt. Even the role, overt-act and the motive is also not proved beyond reasonable doubt. He has contended that the panchnama of place of offence is also doubtful. He has also contended that the panchas are the selected witnesses and they are selected from one community only. He has contended that looking to the medical evidence, the injuries received by the injured persons are simple in nature and, therefore, the learned Judge has wrongly held the appellants - accused guilty of the offence under Section 307 of I.P. Code. He has contended that looking to the facts and circumstances and looking to the evidence on record, the prosecution has failed to established its case beyond reasonable doubt and, therefore, the Judgment and order of conviction and sentence passed by the trial Court is required to be quashed and set aside. 14. In support of his arguments, Mr. Thakkar has relied upon the decision in the case of Parsuram Pandey & Ors., v. State of Bihar, reported in (2004) 13 SCC 189 and contended that the common object and common intention is not proved. There was exchange of hot words between the injured and the accused. Mr. Thakkar has read Para - 12 of the decision of the Hon'ble Apex Court and contended that "to attract Section 149 IPC, the prosecution must prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likely to be committed. Unless these three elements are satisfied by the prosecution the accused cannot be convicted with the aid of Section 149 IPC." Relying upon the said decision Mr. Thakkar has contended that acts of the present appellants, which are stated by the injured witnesses as well as the eye witnesses, do not prove common object and in light of said decision of the Honourable Apex Court the prosecution has failed to prove common object and unlawful assembly beyond reasonable doubt. 15. Mr. Thakkar has contended that the present appellants are from the Rabari community and in the said community, it is the custom to keep stick with them. Mr. Thakkar has relied upon the decision of the Honourable Supreme Court in the case of Maranadu & Anr. v. State of Inspector of Police, Tamil Nadu, reported in 2009 (1) GLH 7 (SC) and contended that in the said decision the Honourable Apex Court held that "Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149." He has contended that role of each member of unlawful assembly is required to be proved and simly presence in the unlawful assembly is not the ground to consider that all the appellants are the members of unlawful assembly and they can be convicted for the offence under Section 149 read with other sections. 16. Lastly, Mr. Thakkar has contended that looking to the medical evidence, which shows that the injuries received by the injured persons are of a simple in nature, and the fact that the incident has happened in a heat of moment and there was no pre-planned of the accused to commit offence, the sentence awarded by the learned Judge is very harsh and looking to the age of the appellants they may be given benefit under the provisions of the Probation of Offenders Act. 17. Learned APP has supported the Judgment and order passed by the Sessions Court and contended that looking to the seriousness of offence no interference of this Court is called for. 17. Learned APP has supported the Judgment and order passed by the Sessions Court and contended that looking to the seriousness of offence no interference of this Court is called for. He has contended that the muddamal sticks are recovered from the possession of the appellants - accused and all the sticks are having iron ring coated thereon and, therefore, the same are required to be considered as deadly weapons. He has also contended that from the evidence of injured witnesses the prosecution has proved its case beyond reasonable doubt that the injured have received the said injuries from the ring coated sticks as well as with Axe which were having in the possession of the appellants - accused. He has contended that from the evidence of witnesses, at the time of incident the presence of appellants - accused are also proved. He has contended that from the oral evidence of independent eye witnesses as well as documentary evidence, prosecution has proved individual role of appellants - accused. He has contended that looking to the panchnama of scene of offence, the blood was recovered from the Ota of Ahir Jivabhai. He has also read Serological Report of Forensic Science Laboratory (Exh.57) and read result of Sample-I of Muddamal article and contended that looking to the presence of blood group "A", there is no change of place which is prescribed by the witnesses. So, the case of the prosecution cannot be considered as doubtful case. He has also contended that the muddamal articles, recovered from the appellants - accused, are fully identified by the injured witnesses and even looking to the conduct of the present appellants - accused the prosecution has proved the common object of the members of unlawful assembly. He has contended that non-examination of witness is not fatal to the prosecution case. Mr. Jani has relied upon the decision in the case of Chaudhari Ramjibhai Narasangbhai v. State of Gujarat & Ors., reported in (2004) 1 SCC 184 and contended that when the injured witnesses, who are relative witnesses and whose evidence is proved to be reliable and trust-worthy, then the appellants - accused can be convicted from the reliable evidence of witnesses. He has contended that in this case, only the witnesses related to the injured witnesses have not been examined by the prosecution, but, independent witnesses have also been examined by the prosecution. He has contended that in this case, only the witnesses related to the injured witnesses have not been examined by the prosecution, but, independent witnesses have also been examined by the prosecution. Therefore, the decision of the Honourable Supreme Court, relied upon by the appellants - accused will not be helpful to the appellants - accused, in the facts of the present case. He has contended that female members of the community of the appellants - accused are always taking the water from the Havada and the said fact was informed by the prosecution witnesses to the Administrator orally and in that connection on the next day the incident has happened. He has contended that though arguments of the defence is that there was some stone throwing from the side of the prosecution witnesses, but, not a single stone was found there during the panchnama of place of offence. 18. Mr. Jani has also relied upon the decision of the Hon'ble Apex Court in the case of Daya Kishan v. State of Haryana, reported in (2010) 5 SCC 81 , and contended that when the presence of appellants - members of unlawful assembly is proved beyond reasonable doubt then the question regarding meeting of mind or formation of common object, it can be even on the spur of moment, is proved. He has also read Para - 20 to 37 of the decision of the Hon'ble Apex Court and contended that in the present case common object is also proved. The weapons are also recovered from the possession of the appellants - accused and overt-act are also proved. 19. Mr. Jani has also relied upon the decision of the Honourable Apex Court reported in AIR 2011 SC 169 and contended that in this case presence of the appellants - accused, overt-act, common object and everything is proved beyond reasonable doubt. He has contended that looking to the facts and evidence on records the learned Judge has rightly held the accused guilty for the offence alleged against him and, therefore, no interference is called for. 20. I have gone through the Judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. 21. 20. I have gone through the Judgment and order passed by the learned Additional Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. 21. To prove the case against the accused, the prosecution has examined Medical Officers - P.W. 1 - Dr. Nilesh Samatbhai Makwana (Exh. 13) and P.W.2 - Dr. Narendrakumar Narandas Hediya (Exh.17). Both the witnesses are the Medical officers. They have examined the injured witnesses and also issued Certificates regarding the injuries received by them. Both the Medical officers are independent witnesses and they have no reasons to give false Certificates. Both the witnesses have explained the injuries which are found on the body of injured persons. I have also compared the oral evidence of injured witnesses with the oral evidence of Medical Officers and the medical Certificates. From the oral evidence of all the injured witnesses, eye witnesses and the Medical Officers, it is clearly established that the appellants - accused have assaulted the injured persons with ring coated sticks and Axe. If a person has assaulted the other persons with such type of ring coated stick, the said ring coated stick can cause serious injury and that stick can be called as "deadly weapon". In the present case all the appellants - accused are of Bharvad community and in the said community they are always keeping with them iron coated sticks and they have assaulted the complainant and other witnesses with said iron coated sticks which can result into fatal injury and, therefore, the said ring coated sticks can be said to be as "deadly weapon". 22. I have also gone through the oral evidence of injured witnesses and the independent witnesses. From the evidence of these witnesses, it is proved beyond reasonable doubt that at the place of offence all the appellants were present with deadly weapons and from the role of each of the appellants - accused it is proved that there was common object and common intention of the appellants - accused to cause serious injuries to the injured witnesses. Even from the evidence, it is proved beyond reasonable doubt that due to an illegal act of the female members of Rabari community of taking away water from Havada and that act was objected by the complainant and others and they have made complaint to the Administrator and, therefore, on the next day all the appellants - accused gathered with a common object and common intention to assault the complainant and other witnesses and thereafter the incident in question has occurred. So, the common object of the present appellant - accused is proved beyond reasonable doubt. It is also pertinent to note that the muddamal weapons, like iron coated sticks (Dang), generally used by Rabari/Bharvad community is also a deadly weapon. If the assailant assault with such type of iron coated stick and cause injury on the head of a person then he may succumb to death. Looking to the facts and evidence on record it clearly appears that overt-act committed by the appellants - accused is proved and looking to the nature of injuries caused by the appellants - accused with deadly weapons to the injured persons, the prosecution has proved its case beyond reasonable doubt. Even looking to the injuries received by the witnesses it is clearly established that there was intention of the present appellants - accused to kill the injured persons and due to intervention made by other persons the injured persons were rescued from the appellants - accused. Looking to the facts and circumstances of the case and looking to the fact that, except minor contradictions, the witnesses have supported the case of prosecution, supported by medical evidence, and, therefore, the trial Court has not committed any error in disbelieving the case of prosecution. Looking to the ingredients of Section 307 of I.P. Code and the quantum of sentence, the trial Court has properly awarded the sentence to the accused and, therefore, the contention of learned Advocate that the sentence is very harsh is also not tenable and no interference is required to be called for by imposing lesser sentence to the accused. 23. In view of above, in my opinion, the trial Court has rightly held the accused guilty of the offence for which he has been convicted and also the sentence awarded is just and adequate and hence no interference is called for. 23. In view of above, in my opinion, the trial Court has rightly held the accused guilty of the offence for which he has been convicted and also the sentence awarded is just and adequate and hence no interference is called for. I am in full agreement with the findings given and reasons assigned by the learned Additional Sessions Judge and there are no cogent and convincing reasons to take different view than the view taken by the learned Additional Sessions Judge. Hence, Appeal requires to be dismissed. 24. Accordingly, this Appeal is dismissed. The Judgment and order dated 24.02.2005 passed by the learned Presiding Officer & Additional Sessions Judge, Fast Track Court No. 4, Junagadh, in Sessions Case No. 64 of 2001 is confirmed. If the appellants - accused are on bail, their bail bonds stand cancelled and they are directed to surrender before the trial Court within four weeks from the date of receipt of writ of this order to serve the sentence awarded to them, failing which the trial Court is directed to issue non-bailable warrants against each of the accused. R & P to be sent back to the trial Court. Appeal dismissed.