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2024 DIGILAW 1256 (GUJ)

State Of Gujarat v. Devjibhai Mandanbhai Sovathia

2024-06-14

A.S.SUPEHIA, VIMAL K.VYAS

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JUDGMENT : (A.S. Supehia, J.) : 1. The present appeals emanate from the judgment and order dated 20.10.1995 passed by the Additional Sessions Judge, Kachchh – Bhuj (for short, “the trial Court”) in Sessions Case Nos.23 of 1993 (Criminal Appeal No.103 of 1996), 24 of 1993 (Criminal Appeal No.100 of 1996) and 60 of 1993 (Criminal Appeal No.20 of 1996). 2. In Criminal Appeal No.20 of 1996 in Sessions Case No.60 of 1993, there were 13 accused and by the judgment dated 20.10.1995, the trial Court has acquitted them. In Criminal Appeal No.103 of 1996 in Sessions Case No.23 of 1993, there were 17 accused and in Criminal Appeal No.100 of 1996 filed by the State in Sessions Case No.24 of 1993, there were 02 accused. By the common judgment and order dated 20.10.1995 passed by the trial Court in Sessions Case No.23 of 1993 (17 accused) and Sessions Case No.24 of 1993 (2 accused), the trial Court has acquitted all the accused by the judgment and order of the even date (20.10.1995) passed in Sessions Case No.60 of 1993, the Trial Court has acquitted 13 accused and the same is subject matter of challenge in Criminal Appeal No.20 of 1996. Thus, the trial Court has acquitted total 32 accused in all the sessions cases. The Trial Court has conducted a separate trial, as mentioned hereinabove, in Sessions Case No.60 of 1993 and Sessions Case Nos.23 and 24 of 1993. 3. The first FIR being CR-I No.80 of 1992 has been registered on 15.08.1992 by the complainant - Renukaben D/o Devjibhai Mandanbhai Sorathiya before Aadipur Police Station, Kachchh against two accused – Dayaram Ramji Chotara @ Babal and Mohan Ramji Chotara under the provisions of Sections 354 and 114 of the Indian Penal Code, 1860 (for short, “the IPC”), wherein she has alleged that while she was going on the scooter on 11.08.1992, at that time, both the accused came on the motorcycle from behind and teased her by overtaking her. Thus, the FIR has been registered after a period of 03 days of the incident. 4. Thus, the FIR has been registered after a period of 03 days of the incident. 4. Thereafter, an FIR being CR-I No.82 of 1992 has been registered before the very same police station by the complainant Devjibhai Mandanbhai Sorathiya (father of Renukaben) on 21.08.1992 at 3:00 p.m. against 8 accused under the provisions of Sections 143, 147, 149 and 307 of the IPC and Section 135 of the Bombay Police Act, alleging that his daughter was again teased by the accused – (1) Visanji Valji Baldaniya, (2) Visanji Meghji Vaniya, (3) Kanji Valji Baldaniya, (4) Devji Valji Baldaniya, (5) Kantilal Valji Baldaniya, (6) Mavji Ramji Chotara, (7) Lalji Ramji Chotara and (8) Khimji Valji Baldaniya. It is alleged that when his daughter informed about teasing by the accused, he along with his wife and two daughters went to the temple, at that time, all the accused persons had assaulted them with axe, knives, sticks etc. and during this scuffle, one Lalji Jetha Vaghmasi and Narsi Puna Baldaniya had received injuries as they had intervened and sustained serious injuries while trying to save them. No offence under the provision of section 354 of IPC has been registered, though it is alleged by the complainant that his daughter was again harassed by the accused persons. 5. Thereafter, FIR being CR-I No.83 of 1992 has been registered before the very same police station by the complainant – Dayaram Ramji Sorathiya, on 21.08.1992 at about 3:00 p.m. against 18 persons – (1) Renuka Devji, (2) Devji Mandan, (3) Prabhulal Mandan, (4) Khimji Mulji, (5) Mohan Mulji, (6) Mavji Punja, (7) Naran Mepa, (8) Amrutlal Naran, (9) Jayantilal Naran, (10) Muktaben Devji and (11) the friend of Renukaben – Kothari Hetal, (12) Jitendra Meghji Vaghmasi, (13) Dilip Naran Baldaniya, (14) Harilal Narayan Baldaniya, (15) Devji Puna, (16) Kanji Mepa, (17) Mohan Abhu and (18) Narshi Puna under the provisions of Sections 323, 143, 147 and 506(2) of the IPC and Section 135 of the Bombay Police Act. It is alleged that near the temple, the complainant was attacked by the accused and other persons and at that time, the accused - Devji Mandan tried to inflict a blow of knife on the chest of the complainant - Dayaram Ramji Sorathiya, however while inflicting such blow, the same was inflicted on Lalji Jetha, on his chest and thereafter, he was caught hold by Renukaben and after scuffle, he released himself and thereafter, he ran away. The complainant has referred to the FIR (CR-I No.80/92) registered by the Renukaben on 15.08.1992 against him. Thereafter, it appears that Lalji Jetha has passed away, later on charge under Section 302 of the IPC has been added. 6. It is also noticed by us that after the registration of the FIR, after two months on 02.11.1992, a private complaint has also been given by the same complainant - Dayaram Ramji Chotara (Sorathiya) against 7 accused – (1) Devji Mandan Sorathiya, (2) Renukaben Sorathiya, (3) Muktaben Devji, (4) Hetalben Khothari, (5) Naran Mepa Sorathiya, (6) Mohan Sorathiya, (7) Bhimji Valji Sorathiya and the same was registered being inquiry No.58 of 1992. This criminal complaint has been filed to register the offence under Sections 302, 307, 326, 143, 147 and 149 of the IPC. After recording the evidence, learned Magistrate, Gandhidham has dismissed the complaint under Section 203 of the Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”) vide order dated 23.03.1993. It appears that the learned Magistrate, without applying his mind to the provisions of Section 210 of the Cr.P.C., has proceeded with the complaint and further rejected the same. The record shows that it was the subject matter of challenge before this Court and also before the Supreme Court and ultimately, it has culminated into the trial proceedings. 7. Thus, the aforesaid FIRs have been culminated from the common incident i.e. the allegations made by Renukaben Sorathiya about her harassment, initially by two accused on 11.08.1992. The trial Court, after recording the evidence, has ultimately acquitted the accused. It is not in dispute that the complainant – Dayaram Ramji Chotara (Sorathiya), had not tendered any explanation that while registering the FIR, he has arraigned 18 persons as accused, whereas in the criminal complaint given before the learned Magistrate, First Class at Gandhidham, he has restricted the names of accused only to 7. It is not in dispute that the complainant – Dayaram Ramji Chotara (Sorathiya), had not tendered any explanation that while registering the FIR, he has arraigned 18 persons as accused, whereas in the criminal complaint given before the learned Magistrate, First Class at Gandhidham, he has restricted the names of accused only to 7. The aforesaid FIR has been culminated into the charge at Exh.1 in Sessions Case Nos.23 and 24 of 1993 vide order dated 11.10.1994 and thereafter, it appears that another charge was also framed at Exh.4 in Sessions Case Nos.23 and 24 of 1993 against 19 persons, vide order dated 30.11.1994. No explanation is coming forth and two charges were framed. As we have noticed that the allegations made in both the charges are similar and it has emanated from the incident of teasing Ranukaben and the entire free fight had occurred because of such incident. 8. The charge at Exh.1 also refers to the offences punishable under Section 302 read with Section 149 of the IPC and Section 307 read with Section 149 of the IPC. Similar is the position in the second charge, which was framed on 30.11.1994. It is also noticed by us that the FIR was registered against 18 persons, however no explanation is tendered that how the charge refers to 19 accused. In Sessions Case No.23 of 1993, there are 17 accused, whereas in Sessions Case No.24 of 1993, two accused are added. The difference appears to be that in the initial charge, which was framed on 11.10.1994 in Sessions Case No.24 of 1993, there were two accused - Kanji Valji Baldaniya and Visan Megji Vaniya, whereas in Second charge, which was framed on 30.11.1994 in Sessions Case No.24 of 1993, the name of the accused - Khimji Valji Baldaniya and Kanji Valji Baldaniya is figuring. 9. The charge refers that the accused had formed unlawful assembly armed with deadly weapons and had attacked and assaulted the complainant - Renukaben. It is alleged, as per the charge dated 11.10.1994, that the accused No.12 – Kantilal Valjibhai Baldaniya had inflicted blow of gupti on the deceased - Narsi Punabhai and Lalji Jetha however, in the subsequent charge dated 30.11.1994, he has been arraigned as accused No.13. So far as the accused No.1 – Kanji Valji Baldaniya of Sessions Case No.24 of 1993 is concerned, he has given 5 blows to Mohanlal Hadiya. 10. So far as the accused No.1 – Kanji Valji Baldaniya of Sessions Case No.24 of 1993 is concerned, he has given 5 blows to Mohanlal Hadiya. 10. At the time of hearing the appeals, we have called for the necessary report with regard to the status of all the accused and the necessary report of the learned Chief Judicial Magistrate was also called by us and accordingly, the report has been filed, which shows that the accused – Sr.No. Name Passed away on 1 Devji Valji Baldaniya 04.11.2009 2 Girdharlal Devshibhai Baldaniya 15.03.2022 3 Laljibhai Ramjibhai Chotara 15.05.2006 4 Hiralal Baldaniya 05.11.2010 5 Kantial Valjibhai Not legible in the death certificate 6 Vishanji Valjibhai 28.03.1995 7 Vishanji Meghji Vaniya 28.05.2004 8 Muljibhai Devshi Baldaniya 02.11.2012 9 Devji Mandanbhai Sorathia 07.08.2020 10 Mohanlal Muljibhai Hadiya 14.09.2007 11 Naranbhai Megabhai Hadiya 08.03.2014 12 Lalji Ramji Chotara 15.05.2006 The above-noted all the accused have passed away. Thus, the main accused - Kantilal Valjibhai Baldaniya, who have inflicted blows of gupti to Narsibhai Punabhai Baldaniya, has passed away. The accused - Khimjibhai Valjibhai Balandiya (accused of Sessions Case No.24 of 1993), who has inflicted pipe blow on Mohanlal Hadiya, has also passed away. Another accused - Devjibhai Madanbhai Sorathiya has passed away on 07.08.2020 and the Coordinate Bench vide order dated 28.04.2022 has ordered the appeal to be abated against him. The complainant of CR-I No.82 of 1992 - Devjibhai Mandanbhai Sorathiya has also passed away. So far as the FIR being CR-I No.83 of 1992 is concerned which is against Devjibhai Mandan Sorathiya, the main accused has also passed away. He tried to inflict the blow on the complainant - Dayaram Ramji Sorathiya (Chotara) but due to mistake, the deceased Lalji Jetha suffered injuries of knife blow. 11. We have perused the judgment and order passed by the Trial Court. 12. It is noticed by us that there is material suppression of facts by both the parties and the trial Court has considered that aspect while passing the judgment. The eye-witnesses are common to the incident and their testimonies reveal that they have not narrated the actual version of the incident and have very conveniently deposed the version of the incident, which suits them. The eye-witnesses are common to the incident and their testimonies reveal that they have not narrated the actual version of the incident and have very conveniently deposed the version of the incident, which suits them. One of such witnesses – Tina K. Baldaniya (PW- 2) in Criminal Appeal No.20 of 1996, who is an eye witness however, it is not coming on record that how she became an eye-witness. Considering that the complainant – Dayaram Ramji Sorathiya filed the complaint on 21.08.1992 being CR-I No.83 of 1992 has not mentioned her name and her presence is also not shown in the FIR, until the police recorded her statement on 27.08.1992 i.e. a week after the incident. Similarly, the deposition of PW-3 – Hiralal M. Baldaniya, shows that he has given the statement after two months of incident and it was recorded on 25.10.1992. He has also evaded his arrest. It also comes on record that the key eye witnesses have been deliberately dropped. Two of them being son of Lalji Jetha and wife of the deceased Narsibhai Punabhai - Jayaben has also been not examined. The deposition of the PW-4 – Dr.Dayal M. Bhadra, who gave the medical treatment to the 5 accused, also appears to be tainted and his evidence appears to be deliberately given in such a manner that the injuries sustained by 5 accused, have not come on record. There is vast inconsistency between the medical evidence and ocular evidence in case of the injured witnesses and the deceased Lalji Jetha. There is also discrepancy found in the testimony of complainant – Dayaram Ramji Sorathiya and the eyewitness - Tina Baldaniya with regard to the death of Narsinh Puniya. The complainant has deposed that Narsinh Puniya has died due to heart attack, whereas the eye witness - Tina Baldaniya has deposed that she is not aware that how he has died. It is pertinent to note that both of them are relatives of the deceased Narsinh Puniya, and both, the complainant and the eyewitness, have suppressed the true facts, in order to conceal their presence in the incident, since an FIR was registered against them also. 13. It is pertinent to note that both of them are relatives of the deceased Narsinh Puniya, and both, the complainant and the eyewitness, have suppressed the true facts, in order to conceal their presence in the incident, since an FIR was registered against them also. 13. The incident appears to be emanated from the first FIR, which was registered by Renukaben Devjibhai Sorathiya on 15.08.1992 for an incident, which occurred on 11.08.1992, alleging that she was teased by two accused Dayaram Ramji Chotara and Mohan Ramji Chotara, while she was returning from college. Admittedly, this FIR has been registered after delay of 3 days. This led to further heart-burning amongst the parties and no explanation is given as to why the said FIR has been registered after a period of three days by Renuka Devji Sorathiya. It is alleged that again, she was teased by the accused - Dayaram Ramji Chotara and both the parties were aggrieved by registration of the FIR by Renukaben and also for teasing of Renukaben by the accused. No charge under section 354 of the IPC is framed when the second incident has occurred. The facts also establish that the complainants themselves are not sure, as to how many accused were present since as noted hereinabove in the FIR, the complainant – Dayaram Chotara though has named 18 accused in the complaint before the learned Magistrate, he has restricted the names of 7 accused. No explanation is emerging from the record, and the State was also unable to point out the same. We also fail to understand as to why the trial court has conducted two separate trials, when the incident is common involving cross FIRs. 14. The trial Court has considered all these aspects and we are in complete agreement with the findings recorded by the trial Court since there is vital suppression of material facts by the witnesses as well as the complainants and it is not established that how the incident has occurred and who has given blow to whom. Even otherwise, the main accused have already passed away along with other accused, and the appeals have abated. Hence, we are not inclined to disturb the findings as recorded by the trial Court at this stage since we do not find that the judgment and order passed by the trial Court is tainted with any perversity or illegality. 15. Even otherwise, the main accused have already passed away along with other accused, and the appeals have abated. Hence, we are not inclined to disturb the findings as recorded by the trial Court at this stage since we do not find that the judgment and order passed by the trial Court is tainted with any perversity or illegality. 15. Thus, since the main accused have passed away and the appeals are abated against them, the only question remains whether the rest of the accused, who have survived, can be acquitted for the offence punishable under section 302 of the IPC by invoking the provisions of Section 149 of the IPC or not. 16. Sections 148 and 149 of the IPC read as under : - “Section 148. Rioting, armed with deadly weapon. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.— If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 17. Section 141 of the IPC refers to the “unlawful assembly”, which is formed of five persons or more persons. The settled legal precedent is that for establishing charge under Section 149 of the IPC, there are two components, i.e. offence committed by any member of unlawful assembly consisting 5 or more members and such offence must be committed in prosecution of the common object under Section 141 of the IPC, by the assembly or the members of such assembly. It is also well settled that for a common object, it is not necessary that there should be prior consult in the sense of the meeting of the members of the unlawful assembly. In the present case, there were free-fight between two groups and the cause or the reason for such free fight was teasing of Renukaben. It is also well settled that for a common object, it is not necessary that there should be prior consult in the sense of the meeting of the members of the unlawful assembly. In the present case, there were free-fight between two groups and the cause or the reason for such free fight was teasing of Renukaben. The persons from both the sides were injured, and as a result of such free fight, two persons have died. From the material placed on record, it is also not clear as to whether the common object of the unlawful assembly was to cause the death of the deceased or not. It is quite possible that the accused persons did not have an intention to cause death of anybody and they had only assembled to teach a lesson to them due to teasing of Renukaben and the complainant party also assaulted to teach the lesson to the accused for teasing her. We are therefore, of the considered view that the appellants are entitled to benefit of doubt. The conviction under Section 302 of the IPC would not be sustainable. The prosecution has failed to prove beyond reasonable doubt that the unlawful assembly had an intention to cause the death of the deceased. Even otherwise, the main accused, who have allegedly inflicted the fatal blows on the deceased, have passed away and the appeals stand abated qua them and also qua other accused as mentioned hereinabove. 18. For the foregoing reasons and analysis, the present appeals are dismissed. The impugned judgment and order dated 20.10.1995 passed by the Additional Sessions Judge, Kachchh – Bhuj in Sessions Case Nos.23 of 1993 (Criminal Appeal No.103 of 1996), 24 of 1993 (Criminal Appeal No.100 of 1996) and 60 of 1993 (Criminal Appeal No.20 of 1996) is confirmed. 19. Record and proceedings, if any, shall be sent back to the concerned trial Court forthwith.