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2016 DIGILAW 159 (GUJ)

Gopalbhai Odhavjibai Parmar v. State of Gujarat

2016-01-21

K.S.JHAVERI, R.P.DHOLARIA

body2016
JUDGMENT : K.S. Jhaveri, J. 1. This appeal is directed against the judgment and order passed by the Court of learned Sessions Judge, Bhavnagar in Sessions Case No. 196/2003 dated 11.09.2006 whereby, the appellants, original accused, have been convicted for the offences punishable u/s. 147, 148, 323 & 302 r/w. Section 149IPC. For conviction u/s. 147 & 148 IPC, all the accused have been sentenced to undergo RI for one year and fine of Rs. 500/- each and in default, RI for a further period of three months. For conviction u/s. 323 r/w. Section 149 IPC, all the accused have been sentenced to undergo RI for six months and fine of Rs. 200/- each and in default, RI for a further period of one month. Whereas, for conviction u/s. 302 r/w. Section 149 IPC, all the accused have been sentenced to undergo imprisonment for life and fine of Rs. 3000/- each and in default, RI for a further period of one year. All the sentences were ordered to run concurrently. The sentence already undergone by the accused was given set-off. 2. The facts in brief giving rise to the filing of present appeal are as under; "At some time during the second week of July 2003, some altercation took place between the accused and Gopal Govind during "Ganesh Utsav" celebrations. Keeping grudge in their minds, the accused persons hatched a conspiracy to kill said Gopal Govind. In pursuance of their ill-design, the accused persons and juvenile - Nilesh Bhopabhai formed an unlawful assembly on 20.07.2003 at about 1500 hrs. and waited at the road near the Theatre named "Top Three" located in Bhavnagar, from where Gopal Govind and Bhavesh Savjibhai, the original complainant, were to pass on a motor-cycle." 2.1 It is the case of prosecution that the accused persons were armed with deadly weapons, like, sword, knives, hockey stick, iron-pipes, etc. The accused persons blocked the way of Gopal Govind and thereafter, assaulted him with the deadly weapons. In the said incident, Gopal Govind sustained severe injuries and ultimately, passed away. The complainant also sustained hockey stick injuries in the said incident. Thereafter, the accused fled the scene of offence. 2.2 A complaint in connection with the aforesaid incident was lodged with 'A' Division Police Station vide I-C.R. No. 244/2003. Necessary investigation was done and statements of witnesses were recorded. The complainant also sustained hockey stick injuries in the said incident. Thereafter, the accused fled the scene of offence. 2.2 A complaint in connection with the aforesaid incident was lodged with 'A' Division Police Station vide I-C.R. No. 244/2003. Necessary investigation was done and statements of witnesses were recorded. At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, being a sessions triable offence, the case was committed to Sessions Court and trial was initiated. 3. During the trial, the prosecution had examined following witnesses; Wt. No. Name of the witness Exhibit No. 1 Girirajsinh Bhojuba 26 2 Aasif Majidbhai Sheikh 29 3 Ravibhai Jamnadas Soni 31 4 Abbasbhai Isabhai 32 5 Dr. Jahangirbhai Bahadur Ratnani 53 6 Nareshbhai Bachubhai Sarvaiya 56 7 Bhaveshbhai Savjibhai 57 8 Dr. Satishkumar Dinkarrai Kalele 70 9 Sajanbhai Rajabhai 76 10 Gokaldas Valabhai 77 11 Bhalabhai & Bhagat Visabhai 78 12 Shantibhai Laljibhai 82 13 Deshurbhai Bodhabhai 83 14 Ketan Bhupatbhai Dave 89 15 Kuldipsinh Hardevsinh Gohil 90 16 Mukeshbhai Gaurishankar Pandya 93 17 Pravinshinh Ranjitsinh Raval 96 18 Nagjibhai Manjibhai Bodat 99 19 Jayaben Amarsingbhai Solanki 103 20 Tribhovan Kuberdas Patel 109 4. The prosecution had also produced and relied upon several documentary evidence, particularly, the inquest panchnama at Exh. 27, panchnama of scene of offence at Exh. 28, arrest panchnama at Exh. 30, 33 & 41, FSL Report at Exh. 50, Serological Report at Exh. 51, Medical Certificate of complainant at Exh. 55, complaint at Exh. 58, Post mortem report at Exh. 71 and panchnama of TI Parade at Exh. 101. 5. At the end of trial, the Court below recorded further statement of accused u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeal. 6. Mr. N.D. Nanavati, learned Senior Advocate appearing with Mr. Ruturaj Nanavati, for appellants, original accused No. 1 to 4, submitted that the Court below committed serious error in convicting the appellants for the alleged offence. He submitted that there are serious omissions and contradictions in the testimony of witnesses and that the evidence of none of the witnesses inspire any confidence. He drew our attention to the evidence of original complainant, Bhaveshbhai Savjibhai (PW-7) and attempted to bring out several discrepancies from within it. He submitted that there are serious omissions and contradictions in the testimony of witnesses and that the evidence of none of the witnesses inspire any confidence. He drew our attention to the evidence of original complainant, Bhaveshbhai Savjibhai (PW-7) and attempted to bring out several discrepancies from within it. 6.1 Alternatively, learned Senior Advocate submitted that the conviction of accused u/s. 302 IPC with the assistance of Section 149 IPC is erroneous since none of the witnesses could depose with certainty the weaponry used by the respective accused at the time when the alleged crime was committed. He, therefore, submitted that when the role played by each of the accused persons is not definite, the Court below ought not to have convicted them u/s. 302 r/w. Section 149IPC since the medical evidence on record shows that death was caused with two distinct blows that proved to be fatal. It is not clear as to which accused had inflicted the fatal blow/s. Hence, the conviction of the accused u/s. 302 IPC deserves to be altered to one u/s. 304 Part-I r/w. Section 149 IPC. 6.2 In support of his submissions, learned Senior Advocate placed reliance upon the following decisions; "(a) Koli Gator Sura v. The State of Gujarat reported in 1966 GLR 357 . (b) Ram Lal v. Delhi Administration reported in AIR 1972 SC 2462 . (c) Ninaji Raoji Baudha and another v. State of Maharashtra reported in AIR 1976 SC 1537 . (d) Badal Murmu and others v. State of West Bengal reported in 2014 (3) SCC 366 ." 7. We have heard learned counsel for both the sides and perused the documents on record. From the evidence of the complainant, Bhaveshbhai Savjibhai (PW-7), the presence of the appellants and juvenile accused at the scene of offence is established beyond doubt. The complainant categorically narrated the entire sequence of events in detail. The appellants and juvenile accused were armed with deadly weapons and were stationed at a particular place waiting for the deceased to arrive at the spot. When the deceased and complainant arrived at the scene of offence, the accused persons assaulted them with the deadly weapons. Thus, the evidence of complainant clearly proves that he is an eye-witness to the incident in question. He has been cross-examined at length by the other side. However, nothing incriminating has come out, as would render his evidence unreliable or non-trustworthy. Thus, the evidence of complainant clearly proves that he is an eye-witness to the incident in question. He has been cross-examined at length by the other side. However, nothing incriminating has come out, as would render his evidence unreliable or non-trustworthy. 8. It is pertinent to note that the evidence of complainant (PW-7) does not say with certainty the weaponry held by each of the accused at the relevant point of time. From his evidence, it is not clear as to which assailant was armed with which weapon. The medical evidence shows that the deceased died on account of injuries that were possible with sharp-edged weapon/s. The Medical Officer has categorically deposed that 15 injuries were found over the dead body. However, only two injuries proved to be fatal. 9. Considering the facts and circumstances of the case and in view of the principle rendered by the Apex Court in the aforesaid cases, we are of the opinion that conviction of accused deserves to be altered from Section 302 r/w. Section 149 IPC to Section 304 Part-1 IPC r/w. Section 149 IPC as there is no reliable evidence on record to prove whether the fatal blow was caused by which accused. The other blows did not fall on any vital part of the body and therefore, the conviction would fall u/s. 304 Part-I IPC r/w. Section 149 IPC. 10. For the foregoing reasons, the appeal is partly allowed. The impugned judgment and order dated 11.09.2006 is modified to the extent that the conviction of appellants, original accused No. 1 to 4, u/s.302 r/w. Section 149 IPC is altered to one u/s. 304 Part-I r/w. Section 149 IPC. Rest of the impugned judgment and order of conviction and sentence is not disturbed. All the appellants are on bail. Their bail bonds stand cancelled and they are directed to surrender to custody within a period of Ten Weeks from today, failing which the investigating agency shall take appropriate action against them in accordance with law.