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Gujarat High Court · body

2019 DIGILAW 114 (GUJ)

Ahir Merubhai Jasabhai v. State of Gujarat

2019-02-11

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeal is preferred by the appellants – original accused against the judgment and order dated 29.4.2003 passed by learned Additional Sessions Judge, Veraval in Sessions Case No.20 of 1999 (6 of 1990) whereby the appellants accused have been convicted and sentenced for the offences under sections 147, 148, 332, 353, 186, 336, 324, 342, 427, 506(2) of Indian Penal Code and 135 of the B.P.Act. 2. The complaint came to be lodged against the accused persons for the offences under sections 147, 148, 332, 353, 186, 336, 324, 342, 427, 506(2) of Indian Penal Code and 135 of the B.P.Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statements of the accused under section 313 of the Criminal Procedure Code, 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellants – original accused have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 6. Today, during the course of hearing, it is pointed out that appellant No.3 – Lohana Maganbhai Nagjibhai has passed away during the pendency of this appeal. Therefore, the appeal stands abated qua appellant No.3 – Lohana Maganbhai Nagjibhai and stands disposed of as having been abated. 7. 6. Today, during the course of hearing, it is pointed out that appellant No.3 – Lohana Maganbhai Nagjibhai has passed away during the pendency of this appeal. Therefore, the appeal stands abated qua appellant No.3 – Lohana Maganbhai Nagjibhai and stands disposed of as having been abated. 7. Mr.Yogesh Lakhani, learned senior advocate assisted by Ms.Rini Kantaria, learned advocate for the appellants – original accused has taken this Court through the entire judgment and record and argued that the incident in question had happened for about 30 years back and trial unfortunately also took place after the passage of 14 years and all the witnesses who were local and independent had not at all supported the case of the prosecution. He submitted that the police officials who were victims to the incident had also arrived after occurrence of the incident and they could not even identify the accused persons except Sarpanch, Upsarpanch and Kishorbhai. He submitted that incident in question took place during nocturnal hours and at the relevant time, Navratri festival was going on and the persons who gathered were celebrating Navratri festival. At that time, police officials from Gir Gadhda Police Station arrived at village Kanakiya for execution of the search warrant and production of custody of Rekhaben – legally wedded wife of Kishorbhai, due to which, the persons who were gathered there had become angry and the incident in question occurred. He submitted that even after conclusion of investigation, out of the mob of 50 – 60 persons, 24 persons were arrested and tried, out of which, learned trial Court had given the benefit of doubt to 17 persons and 7 persons have been convicted. He submitted that even after conclusion of investigation, out of the mob of 50 – 60 persons, 24 persons were arrested and tried, out of which, learned trial Court had given the benefit of doubt to 17 persons and 7 persons have been convicted. In view of the aforesaid factual position, Mr.Lakhani argued that since no satisfactory evidence is emerging out from the Record and Proceedings as the trial took place after about 14 years from the date of incident and in order to put an end to the present case, since the police officials are also the victims of incident, let the sentence be reduced to the extent of the sentence already undergone by the appellants accused during the trial as well as during the pendency of this appeal while maintaining the fine except original accused No.20 – appellant No.7 herein as only injured PSI Mr.Baria named him, but none of the person has shown the presence of appellant No.7 in the mob and active participation. 8. On the other-hand, Ms.Bhatt, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of the appellants - original accused. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and since the police officials who were on duty came to be attacked and, therefore, punishment inflicted upon the accused does not call for any interference. 9. This Court has heard Mr.Yogesh Lakhani, learned senior advocate for the appellants - accused and Ms.Bhatt, learned APP for the State. 10. On overall appreciation of the evidence on record, it can be seen that the prosecution in all examined for about 30 witnesses who were shown as independent witnesses who had not at all supported the case of the prosecution and therefore, entire case of the prosecution rests upon the evidence of the police officials who were present while discharging the duty and who became victims of the incident in question. On making overall evaluation of their evidence on record, it is noticed that none of the witnesses have acquittance with the accused, they have only identified as Sarpanch, Upsarpanch of village and one Kishorbhai. On making overall evaluation of their evidence on record, it is noticed that none of the witnesses have acquittance with the accused, they have only identified as Sarpanch, Upsarpanch of village and one Kishorbhai. Except that, those persons who were present in on going Navratri festival were apprehended as while the police officials who were discharging their duty of execution of search warrant and taking custody of legally wedded wife of accused Kishorbhai for production before the learned Magistrate as her father has obtained search warrant raising grievance that she is being ill-treated by her in-laws. Due to which, the police arrived during nocturnal hours and when Navratri festival was already going on, at that time, the police officials tried to execute search warrant by seeking custody of Rekhaben who was wife of accused No.6 – Kishorbhai and daughter-in-law of villagers who protested during the night, due to which, scuffle took place between the police officials as well as persons who were celebrating Navratri festival and they came to be apprehended later on by bringing more police force and those witnesses who have been examined, they have arrived after the incident and they have identified some of the witnesses during the course of their examination after about 14 years during the course of trial. Indisputably, none of the police officials were knowing by name any one of the accused who were put to trial. Indisputably, no identification parade was carried out during the course of investigation. 11. In view of the aforesaid nature of evidence as well as taking into consideration the fact that glasses of jeeps were broken as well as PSI Mr.Baraiya sustained simple injury as well as fracture over his third rib and other nine police officials also received superficial injury over their persons and that they have been treated as outdoor patients coupled with the fact that the accused are charged with the aid of invoking the provisions of vicarious liability and therefore, they being treated as members of mob, unlawful assembly and omnibus punishment came to be fastened upon, however, while evaluating the evidence on record, this Court noticed that simply being members of unlawful assembly is not sufficient since peculiar facts and circumstances of the case clearly indicate that members who came to be apprehended were also the members of ongoing Navratri festival. In that view of the matter, no conclusive evidence is forthcoming on record as regards to identification and respective participation of the accused in the crime in question. Under the circumstances, this Court deems it appropriate to reduce the sentence to the extent of the sentence already undergone by the appellants accused while maintaining the fine imposed by learned trial Court except accused No.20 – appellant No.7 herein whose involvement is not out of doubt and therefore, he is required to be extended the benefit of doubt as has been extended to other 17 accused who came to be tried in the same trial. 12. For the reasons recorded above, the appeal succeeds partly. The impugned judgment and order dated 29.4.2003 passed by learned Additional Sessions Judge, Veraval in Sessions Case No.20 of 1999 is quashed and set aside qua appellant No.7. As stated above, appeal stands abated qua appellant No.3 herein. The impugned judgment and order dated 29.4.2003 passed by learned Additional Sessions Judge, Veraval in Sessions Case No.20 of 1999 is confirmed so far as other appellants are concerned and their sentence is reduced to the extent of sentence already gone by the appellants accused while maintaining the fine imposed upon them by learned trial Court and the fine is to be paid within a period of two months from today before the learned trial Court failing which the appellants shall undergone sentence of two months. The appellants accused be set at liberty if not required in any other case. Bail bond, if any, stands cancelled. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.