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2015 DIGILAW 1246 (GUJ)

Lakha Sagaram Bharvad v. State of Gujarat

2015-12-04

K.S.JHAVERI, R.P.DHOLARIA

body2015
JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 21.1.2000 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, in Sessions Case No. 84 of 1993, whereby all the accused persons are held guilty for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code (for short, "IPC"). The accused were ordered to undergo rigorous imprisonment for a period of six months for offence punishable under Section 147 of IPC, one year's rigorous imprisonment was awarded for offence under Section 148 of IPC and for offence under Section 302 read with Section 149 of IPC, the accused were ordered to undergo imprisonment for life. The accused were also ordered to pay fine of Rs. 100/- and in default of payment of fine, further rigorous imprisonment of 15 days was imposed. Feeling aggrieved by the impugned judgment, accused Nos. 1 to 4 have preferred Criminal Appeal No. 139 of 2000, while Criminal Appeal No. 110 of 2000 is preferred by accused No. 6. Criminal Appeal No. 246 of 2000 was preferred by accused No. 5, however, since accused No. 5 has expired on 2.2.2005 said appeal is disposed of as having abated vide order dated 22.10.2013. 2. The facts in brief giving rise to the filing of present appeal are as under: 2.1 Original complainant Kumbhabhai Naththu Bharvad on 8.7.1992 at about 9.30 p.m filed a complaint bearing C.R. No. 321/92 before Dehgam Police Station against accused Nos. 1 to 6. As per the complaint that the complainant was doing agricultural work and also doing the work of mending of cattle at village-Ramnagar. Son of the complainant, Hira and his grand-son viz. Laxman had gone to graze cattle at about 9 a.m. in the sim of Village-Kadadara. At 2.30 p.m. grand-son, Laxman Musa came running and informed that Hira was assaulted and beaten by persons of Bharvad community of Village-Kadadara and Lalpur by sticks and pipes. It is alleged that accused Nos. 1, 2, 4 and 6 along with son Sega Mom abused Hira and asked as to why he had come to graze cattle in the sim of their village. It is alleged that all these five persons had given kick and fist blows to him. It is alleged that accused Nos. 1, 2, 4 and 6 along with son Sega Mom abused Hira and asked as to why he had come to graze cattle in the sim of their village. It is alleged that all these five persons had given kick and fist blows to him. It is alleged that accused No. 5 came there with stick and pipe and gave a pipe blow on the head of Hira and other accused persons had caught hold of Hira. It is alleged that Hira raised shouts and became unconscious. It is also alleged that accused No. 6 gave threats that in future if they would come to graze cattle they would not be spared. Therefore, the complainant and other relatives ran to the place of incident and saw that Hira was lying unconscious. It is alleged that his silver chain tied around the waist and gold earrings were missing. Therefore, offence under Sections 307, 324, 147, 148, 149, 403 of IPC was registered against the accused persons. During the treatment, Hira succumbed to the injuries on 9.7.1992 at 12.40 p.m., therefore, offence under Section 302 of IPC was added. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exh. 1. Hasmukhbhai Chimanbhai Patel 24 2. Dr. Vinayakarav Vasudevrav Patil 28 3. Dr. Surendra Mahendrakumar Sharma 33 4. Ajitbhai Ranchhodbhai Patel 34 5. Pratapsinh Kalusinh 36 6. Amarsinh Gopalji 38 7. Amrabhai Kanabhai 39 8. Punambhai Mashabhai 45 9. Laxmanbhai Masabhai 46 10. Mashabhai Kumbhabhai 47 11. Jesarbhai Khodabhai 50 12. Hathiji Becharji Chavda 52 13. Devjibhai Manjibhai Damor 67 14. Manikant Labhshankar Shukla 71 15. Sanabhai Sidibhai Bharvad 75 2.4 The prosecution had also produced and relied upon Postmortem report, FSL report, FIR, complaint and other documents as documentary evidence in support of its case. Laxmanbhai Masabhai 46 10. Mashabhai Kumbhabhai 47 11. Jesarbhai Khodabhai 50 12. Hathiji Becharji Chavda 52 13. Devjibhai Manjibhai Damor 67 14. Manikant Labhshankar Shukla 71 15. Sanabhai Sidibhai Bharvad 75 2.4 The prosecution had also produced and relied upon Postmortem report, FSL report, FIR, complaint and other documents as documentary evidence in support of its case. 2.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 3. Mr. Nitin Amin, learned advocate for accused Nos. 1 to 4 (Appellants in Criminal Appeal No. 139 of 2000) has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that PW-5, Laxmanbhai is shown as an eye-witness, however, there are many contradictions in the evidence of this witness. He submitted that this witness has not referred to accused No. 4 in his evidence while in the FIR name of accused No. 3 was not given. In the FIR, there is no reference that accused Nos. 1 to 4 were having any weapon. In the telephone vardhi, names of the appellants were not given as assailants. He submitted that first Vardhi, FIR and evidence of PW-5 are contradictory to each other. PW-5 also stated that accused Nos. 1 to 3 were giving kick and fist blows to the deceased while other accused were having sticks in their hands but they had not inflicted any blow. He also stated that during the scuffle, clothes of the deceased were torn, however, as per Exh.51, it is clear that the clothes of the deceased were not torn. Therefore, it creates doubt as to whether PW-5 was eyewitness to the incident or not and his evidence cannot be relied to convict the accused persons. He also submitted that in view of the medical evidence, it is clear that there was only one injury on the person of the deceased and there were no abrasion or bruises, therefore, even if the case of the prosecution is believed, present appellants-accused Nos. 1 to 4 cannot be held guilty of any offence. He also submitted that in view of the medical evidence, it is clear that there was only one injury on the person of the deceased and there were no abrasion or bruises, therefore, even if the case of the prosecution is believed, present appellants-accused Nos. 1 to 4 cannot be held guilty of any offence. He also submitted that since there was only one injury to the deceased, it can be said that no other accused person has caused any injury to the deceased. He has also taken us through the evidence of Dr. Surendra Mahendrakumar Sharma. This witness has specifically admitted that, except one head injury, no other injury was found on the dead body of the deceased. This witness has stated that if the deceased would have been beaten by five to six persons, there would have been external injuries on his body, however, no such external injuries were found on the body of the deceased. He, therefore, prays to allow this appeal by acquitting the accused of all the offences by setting aside the impugned judgment. 3.1 So far as Criminal Appeal No. 110 of 2000 filed by accused No. 6 is concerned, Mr. Panchal has also taken us through the evidence and adopted the submissions made by Mr. Amin. He also submitted that the prosecution has failed to prove its case against accused No. 6 and prayed to allow Criminal Appeal No. 110 of 2000 by acquitting the accused. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused persons is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She has taken us through the evidence of PW-8, 9 and 10, who are the eye witnesses to the incident. She submitted that these witnesses have stated that the accused were present at the scene of offence and accused Nos. 1 and 5 had given stick blows to the deceased. She also submitted that it has also come on record that some of the accused had caught hold of the deceased and the others had beaten him. She submitted that these witnesses have stated that the accused were present at the scene of offence and accused Nos. 1 and 5 had given stick blows to the deceased. She also submitted that it has also come on record that some of the accused had caught hold of the deceased and the others had beaten him. She submitted that, therefore, the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, no interference is called for in the present appeals. 5. We have heard Mr. Nitin Amin and Mr. K.J. Panchal, learned advocates for the appellants-original accused, and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. The cause of death shown in the report is due to shock of head injury sustained. Therefore, it is clear that this injury is the reason for death of the deceased and this is unnatural death. It is also clear that the deceased died due to the injury caused on his head. From the evidence, it is also clear that accused No. 5 had caused this injury, however, accused No. 5 has expired and appeal filed by him has abated. Therefore, now role of other accused persons is required to be seen. Taking into consideration the medical evidence, it is clear that the deceased died due to the injury caused on his head and there were no other injuries on his body. Therefore, even if the case of the prosecution is believed, the offence would fall either under Section 304, part-II or 304, Part-I. Considering the evidence of PW-8, 9 and 10, who are crucial witnesses in the present case, though there are serious omission and contradictions in their evidence, therefore, it cannot be said that the accused are guilty of offences under Sections 147, 148 and 302 read with Section 149 of IPC. At the most, it can be said that presence of the present accused at the scene of offence is proved. At the most, it can be said that presence of the present accused at the scene of offence is proved. However, considering the fact that there are contradictions as to whether they were holding any weapon and considering the fact that no injuries were caused by the present appellants, it can be said that the present appellants are guilty of offence under Section 323 of IPC and they cannot be held guilty for offence under Section 302 read with Section 149 of IPC. Considering the fact that the incident in question took place in 1992, in our opinion, ends of justice would be served if the appellants are ordered to undergo rigorous imprisonment for a period of three months. 6. For the foregoing reasons, both these appeals are partly allowed. The impugned judgment and order dated 21.1.2000 passed by learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad, in Sessions Case No. 84 of 1993 is modified and conviction of the present appellants, accused Nos. 1 to 4 and 6 of Sessions Case No. 84 of 1993 for offences punishable under Sections 147, 148 and 302 read with Section 149 of IPC is set aside, however, they are held guilty for offence punishable under Section 323 of IPC and ordered to undergo rigorous imprisonment for a period of three months. The period of imprisonment already undergone by the appellants-accused shall be given set off. The appellants-accused shall surrender before the jail authorities within a period of ten weeks from today to undergo the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.