State of Gujarat vs Rabari Meva Gova and Others

K.S. Jhaveri, J.—1. Heard learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State and learned Senior Counsel Mr. Yogesh S. Lakhani for the respondents accused.

By way of Criminal Appeal No. 434/1998, the Appellant - State has felt aggrieved by the judgment and order of acquittal dated 24.02.1998 of the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No. 12/1995 whereby the respondents herein were acquitted of the offences punishable under Section 147, 148, 307, 326, 325 read with Sections 149 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act.

Criminal Appeal No. 180/1998 is an Appeal preferred by the original accused in Sessions Case No. 12/1995 whereby the accused were aggrieved by the judgment and order of sentence and conviction dated 24.02.1998 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur wherein the accused for the offences punishable under Sections 307, 325, 324, 323 read with Section 149 of the Indian Penal Code were directed to undergo the sentence of rigorous imprisonment of 5 years, 3 years, 2 years and 6 months respectively and each of them were directed to pay the fine of Rs. 1,000/-, Rs. 500/-, Rs. 400/- and Rs. 200/- for the respective sections as referred to hereinabove and in default of payment of fine, the accused were also directed to further undergo simple imprisonment for a period of one year, nine months, six months and three months respectively. The accused were further sentenced for rigorous imprisonment of six months and nine months respectively for the offences punishable under Sections 147 and 149 of the Indian Penal Code and were also directed to pay fine of Rs. 100/- and Rs. 200/- respectively. They were further directed to undergo simple imprisonment for one month and two months in default for the respective offence. The accused were directed to undergo the sentences awarded under the different heads concurrently.

The case in brief and the incident which occurred on 15.07.1994 are as under:-

3.1. It is the case of the prosecution that the complainant resides at Village Thara and is involved in agricultural operations. He has four brothers, the eldest - Mevabhai, the second brother - Vastabhai, the third brother - Arjanbhai and the fourth is the complainant himself who is the youngest of all of them. All the brothers reside separately with their respective families. The brothers have one sister who is married and resides at her matrimonial home. On the said day, the complainant alongwith his brothers - Vastabhai and Arjanbhai and PW4 - Jebarben and their uncle''s son PW6 - Bababhai Vohabhai and other relatives were going to attend the after death ceremony (besna) of the brother-in-law of the brothers and were waiting on the road. PW11- Ratnabhai Sudabhai, Masrubhai Hemabhai and Bijalbhai Bhutabhai had gone for hiring a jeep. At that juncture, it was observed that the accused were armed with various weapons like the original accused No. 1 - Khengar Ramesh with dharia, the accused original No. 6 - Meva Gova with a stick, the original accused No. 8 - Chotha Hari with a stick, the original accused No. 7 - Rabari Ganesh with a pipe, the deceased original accused No. 2 - Magan Ganesh with a stick, the deceased original accused No. 5 - Naran Puja with an open knife. All the above accused are alleged to have come to the place where the complainant and the entire party were waiting and are alleged to have given verbal abuses and asked them as to why they were walking on the said road, when they were specifically instructed not to come here. The intensity of the verbal abuses increased to which PW7 - Vastabhai objected. On hearing this, is alleged that the original accused No. 1 - Khengar Ganesh got incensed and gave a blow with a dharia on the head of PW7 - Vastabhai. The original accused No. 8 - Chota Hari gave a stick blow on the head to PW2 - Arjanbhai and the deceased accused gave a pipe blow on the hands of PW7 - Vastabhai. Inspite of the shouts given by the injured, it is alleged that the accused did not relent and when attempts were made by PW6 - Bababhai, the complainant, PW4 - Jebarben and PW2 - Arjan to free PW6 - Bababhai, the original accused No. 3 - Baba Meva is alleged to have given repeated stick blows. The original accused No. 8 - Chota Hari is alleged to have stick blows to PW4 - Jebarben, the original accused No. 5 - Narayan Punja is alleged to have inflicted knife blows on the hands of PW2 - Arjanbhai and then random blows were inflicted on the injured. At that juncture, PW11 - Ratnabhai arrived with a jeep and tried to intervene between the warring parties. All the injured were made to sit in the jeep and were taken to the hospital and since there was no doctor available then, the injured were made to wait at the hospital and the complainant went to lodge a complaint with Thara Police Station at about 10.30 am. The entire incident was narrated before PW14 - unarmed Police Head Constable Valabhai Harkhabhai which was registered as I-C.R. No. 84/94 under Sections 323, 324, 326, 147, 148, 149 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act and PW7 - Vastabhai and PW2 - Arjanbhai were taken to the Dispensary at Bhansali Trust, Deesa.

3.2. After following the relevant procedure, the chargesheet was led before the learned Magistrate and the case was committed to the Sessions Court, being Sessions triable case. The accused pleaded not guilty to the charges levelled against them.

3.3. At the time of the trial, the prosecution examined the following witnesses:-

The prosecution also relied upon various documentary evidence, some of them are:-

Particulars

Exhibit

Complaint

16

Medical Certificate of PW4 � Jebarben Arjanbhai from Bharati Hospital, Patan

24

Internal Case papers of PW4 � Jebarben Arjanbhai from Bharati Hospital, Patan

25

Medical Certificate of PW6 � Bababhai Vohabhai from Bharati Hospital, Patan

26

Internal Case papers of PW6 � Bababhai Vohabhai from Bharati Hospital, Patan

27

Case Papers of PW2 �Arjanbhai Bijolbhai from Bharati Hospital, Patan

28

Medical Certificate in respect of injuries of PW2 �Arjanbhai Bijolbhai from Bharati Hospital, Patan

29

Case Papers of PW7 � Vastabhai Bijolbhai from Bharati Hospital, Patan

30

Medical Certificate of PW7 � Vastabhai Bijolbhai from Bharati Hospital, Patan

31

Panchnama of the position of the body of the injured � Vastabhai, Jebarben and Bababhai

34

Panchnama for the seizure of weapons

41

Medical Certificate given by Dr. Vijay R. Sheth for the injuries received by PW2 � Arjanbhai Bijolbhai

48

Certificate given by Dr. Vijay R. Sheth for the indoor treatment given to PW2 � Arjanbhai Bijolbhai

49

Discharge Certificate given by Dr. Vijay R. Sheth for PW2 � Arjanbhai Bijolbhai

50

Extract of the history of Dr. Vijay R. Sheth regarding PW2 � Arjanbhai Bijolbhai

51

Report given by Dr. Vijay R. Sheth regarding the position of the body of PW2 � Arjanbhai Bijolbhai and yadi written for obtaining the Medical Certificate by the Investigating Officer

52

Yadi written by the Investigating Officer to Dr. Vijay R. Sheth regarding the treatment given to PW2 � Arjanbhai Bijolbhai

53

Certificate given by Dr. Vijay R. Sheth in respect of the injuries suffered by PW2 � Arjanbhai Bijolbhai

54

Panchnama of the seizure of weapons used by the accused No. 6, 7 and 8.

58

Panchnama of the scene of offence

60

Panchnama of the seizure of weapons used by the accused No. 1, 3, 4 and 5 and the other accused who had expired

61

Panchnama of the position of the body of the PW2 - Arjanbhai Bijolbhai

62

Report given by the Court addition of Section 307 of the Indian Penal Code qua the accused

63

Copy of the wireless message to the Deputy Superintendent of Police regarding visitation

64

Copy of the wireless message given by CPI, Palanpur

65

Report for the serious offences

66

Copy of the wireless message given by the PI, Deesa for taking the Dying Declaration

67

Declaration for prohibition of weapons

69

3.4. At the end of the trial, the learned Additional Sessions Judge, Banaskantha, Palanpur passed the above cited judgment and order.

Learned Additional Public Prosecutor Ms. C.M. Shah for the appellant - State has submitted that the judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of natural justice. It is further submitted that it ought to be appreciated that the accused were part of the unlawful assembly and had inflicted serious injuries on the injured and further, all the accused were armed with deadly weapons like sticks, pipe, dharia, knife etc. and deposition of various witnesses also reveal the presence of the accused at the place of the incident. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge qua the acquittal of the accused be upturned.

Learned Senior Counsel Mr. Yogesh S. Lakhani for the accused has submitted that the incident occurred in the year 1994. Both the accused and the complainant/the injured belong to the same community and no untoward incident has occurred since then and peace is prevailing. It is submitted that considering the time period that has elapsed, this Court in the interest of justice may consider the principle rendered by the Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra reported in , 2013 (6) SCALE 778 in favour of the accused.

We have heard learned Advocates appearing for the respective parties and perused the records of the case.

The Criminal Appeal No. 180/1998 preferred by the accused stands allowed.

Considering the facts and circumstances of the case, we are of the view that the interest of justice would be met by considering the principle rendered by the Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra reported in , 2013 (6) SCALE 778. Hence, we are inclined to grant the benefit of the provision of Section 357 of Cr.P.C. to the accused. Accordingly, while granting benefit of judgment rendered in Ankush Shivaji Gaikwad''s case to the accused, it is directed that collectively, the accused shall deposit an amount of Rs. 1,00,000/- (Rupees One Lac Only) with the concerned Nagar Palika and drawn in favour of the local authority, within a period of eight weeks from today and the Nagar Palika shall use the said amount for the purpose of sanitation. Even if after 15th JANUARY, 2017, the amount of Rs. 1,00,000/- lies un-utilized, the accused shall withdraw this amount and use it for the purpose of sanitation in the locality. However, if the accused fail to deposit the amount of Rs. 1,00,000/- as aforesaid within the stipulated period, the accused shall surrender to custody on expiry of the aforesaid period, failing which the investigating agency shall take necessary steps against the accused for sending them to jail custody.

The rest of the part of the judgment and order of conviction and sentence remains unaltered. The fine and in default punishment as imposed by the trial court is maintained. If the accused have already served the aforesaid period of sentence, they shall be set at liberty forthwith, provided they are not required by the jail authority for any other purpose. Record and proceedings be sent back forthwith.

In view of the above, Criminal Appeal No. 434/1998 preferred by the State and Criminal Revision Application also stands dismissed.