PETITIONER: BHARWAD JAKSHIBHAI NAGJIBHAI & ORS. Vs. RESPONDENT: THE STATE OF GUJARAT DATE OF JUDGMENT24/08/1995 BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J) CITATION: 1995 AIR 2505 1995 SCC (5) 602 JT 1995 (6) 275 1995 SCALE (4)791 ACT: HEADNOTE: JUDGMENT:
WITH
CRIMINAL APPEAL NO 382 OF 1989
Arvindbhai Kanjibhai Patel
Versus
Bharwad Jakshibhai Nagjibhai & Ors.
J U D G M E N T
M.K. MUKHERJEE, J.
Fifteen persons were put up for trial before the
Additional Sessions Judge, Ahmedabad (Rural) at Narol for
rioting with deadly weapons, committing the murder of
Govindbhai Girdharbhai and attempting to commit the murders
of Arvind Kumar Kanjibhai and Vinodchandra Keshavlal. The
trial Judge acquitted them of all the charges and aggrieved
thereby the State of Gujarat preferred an appeal. The High
Court admitted the appeal against seven out of the fifteen
acquitted and dismissed it summarily as regards others. The
appeal was ultimately allowed and all the seven accused were
convicted under Sections 148 and 326 read with section 149
IPC for causing grievous hurt to Govindbhai. For the
injuries caused to Arvind and Vinod some of them were
convicted under sections 324 and 326 IPC (mimoliciter)
respectively and the rest with the aid of Section 149 IPC.
For the above convictions rigorous imprisonment ranging from
1 to 3 years and fines were imposed with a direction that
the substantive sentences shall run concurrently. Assailing
their convictions and sentences the seven accused have filed
one of these two appeals (Criminal Appeal No.381 of 1989).
The other appeal (Criminal Appeal No.382 of 1989) has been
filed by Arvind for setting aside the acquittal of the seven
accused in respect of the charges under section 302/149 and
307/149 (two counts) and convicting them thereunder;
alternatively, for enhancement of their sentences for the
convictions recorded against them by the High Court. Both
the appeals have been heard together and this judgment will
dispose of them.
Bereft of details the prosecution case is as under:
In December, 1980 there was an election of Bavla Nagar
Panchayat which was mainly contested by two groups, one
consisting of the members of the Bharwad community and the
other of Patels. In that election success of the Patels was
more pronounced than that of the Bharwads. Since then the
relations between the two communities, who reside in two
separate localities, in the town of Bavla were strained. On
June 2, 1981 at or about 6 P.M. about 40 to 50 members of
the Bharwad community, including the accused persons, came
out of their locality armed with deadly weapons like sticks,
dharias and farsis and proceeded towards the market shouting
that they would beat and kill the members of the Patel
community. With that object in view they attacked three
persons of Patel community in succession. The first attack
was on Govindbhai who, owing to the injuries inflicted upon
him, expired on the following day, that is, on June 3, 1981.
The second attack was on Arvind who saved his life by
entering into the shop of one Bipinbhai. Lastly the mob went
to the shop of Vinod, dragged him out and assaulted him.
Immediately after he was assaulted, Arvind went to
Police Station and lodged an information about the same. On
that information Sub-Inspector Chauhan (PW 12) of Bavla
Police Station registered a case and took up investigation.
Arvind and the other two injured were taken to V.S.
Hospital, Ahmedabad and admitted therein. As it was
subsequently revealed that the assaults on Govindbhai and
Vinod were parts of the same transaction, S.I. Chauhan
carried out a joint investigation in respect of all the
three assaults and on completion thereof submitted
chargesheet.
The accused-appellants pleaded not guilty to the
charges levelled against them and asserted that they had
been falsely implicated.
To bring home the charges levelled against the accused-
appellants, the prosecution examined the two injured Arvind
and Vinod , Bipinbhai (PW 5). Anil Kumar
and Natwarbhai (PW 7) as eye witnesses to prove one or the
other episode of the entire incident. Besides, other
witnesses including doctors, were examined to corroborate
their evidence. No witness was, however, examined on behalf
of the defence.
The learned trial Judge discussed the evidence adduced
by the prosecution and concluded that none of the eye-
witnesses could be relied upon. The High Court in its turn
reappraised the evidence and held that findings of the trial
Judge were perverse.
Mr. Ramaswamy, the learned counsel appearing for the
accused-appellants criticised the judgment of the High Court
on the ground that it ought not have set aside the judgment
of the trial Judge merely because a different view of the
evidence could be taken, more so, when the latter was based
on a detailed and proper discussion and appreciation of the
evidence. The other contention of Mr. Ramaswamy was that
even if it was assumed that the High Court was justified in
setting aside the acquittal it was not at all justified to
convict the accused-appellants under Sections 326 IPC
simpliciter or with the aid of Section 149 IPC as from the
evidence of the eye-witnesses and the doctors the only
conclusion that could be drawn was that the accused persons
shared the common object of committing the offence of simple
hurt punishable either under Section 323 IPC or, at best,
under Section 324 IPC. In that view of the matter, Mr.
Ramaswamy submitted, the convictions of the accused-
appellants were liable to be accordingly altered and having
regard to the fact that since the offences were allegedly
committed more than fourteen years had elapsed and each of
the accused appellants had already served about 10 months of
imprisonment the substantive sentence imposed upon them
might be reduced to the period already undergone.
Mr. Lalit, the learned counsel appearing in support of
the appeal preferred by Arvind, on the other hand contended
that having reversed the order of acquittal for justifiable
reasons, the High Court ought to have convicted the accused-
appellants under Section 302 read with Section 149 IPC for
causing the death of Govindbhai. According to Mr. Lalit the
facts and circumstances leading to the death of Govindbhai
unmistakably proved that the common object of the unlawful
assembly was to commit his murder and consequently, as
members of the unlawful assembly, each of the accused
persons was liable to be convicted under Section 302 read
with Section 149 IPC. To bring home his contention Mr. Lalit
submitted that the evidence on record clearly established
that to wreak their vengeance the accused-appellants along
with other members of their community and armed with deadly
weapons covered a distance of about 4 kms. and recknessly
and brutally assaulted three members of the Patel community,
one of whom was dragged out of his shop. Mr. Lalit urged
that when those facts and circumstances were considered in
the light of the injuries sustained by Govindbhai the only
conclusion that could be drawn was that the common object of
the unlawful assembly was to commit murder. Mr. Lalit next
urged that even if it was held that the common object of the
unlawful assembly was to cause grievous hurt to Govindbhai,
at least, the accused-appellant Nos. 1 and 2 namely, Bharwad
Jakshibhai Nagjibhai and Bharwad Bhikhabhai Nathabhai must
be held to be guilty of the offences under Section 302 read
with Section 34 IPC as the injuries caused by them with an
iron ringed stick and dhariya respectively resulted in his
death. Mr. Lalit lastly submitted that in case the findings
of the High Court regarding the nature of offences committed
by the accused-appellants were to be held unexceptionable,
the sentence of imprisonment for 3 years imposed for the
conviction under Section 326 IPC for assault on Govindbhai
was wholly inadequate. Needless to say, the learned counsel
appearing for the State supported the entire judgment of the
High Court.
Law is now well settled that though the Code of
Criminal Procedure does not make any distinction between the
powers of the Appellate court while dealing with an order of
conviction or of acquittal, normally the Appellate Court
does not disturb an order of acquittal in a case where two
views of the evidence are reasonably possible. But the above
principle of is not applicable where the approach of the
trial Judge in dealing with the evidence is manifestly
erroneous and the conclusions drawn are wholly unreasonable
and perverse. In the instant case we find that the High
Court was fully conscious, and did not transgress the bounds
of its appellate powers while dealing and reversing the
order of acquittal.
As already noticed the prosecution case was that the
successive assaults on Govindbhai, Arvind and Vinod were
parts of the same transaction and outcome of one and the
same common object and not isolated incidents. Surprisingly
however, the trial Judge appraised the evidence of the eye
witnesses treating the three incidents of assault as
distinct and unconnected with each other. The High Court
was, therefore, fully justified in observing that the basic
approach of the trial Judge in appreciating the prosecution
evidence was absolutely erroneous, as it proceeded as if the
three assaults were for different motives or common objects.
With the above observation, the High Court posed the
basic question as to whether the prosecution succeeded in
proving that 40-50 members of Bharwad community formed an
unlawful assembly and considering the evidence of the eye
witnesses answered it in the affirmative. The High Court
also observed that even the defence did not seriously
challenge the above part of the prosecution case and that
the learned counsel appearing for the accused did not
dispute that question. Before us also Mr. Ramaswamy in his
usual fairness did not also join issue with the above
finding of the High Court.
The next question, which the High Court took up for
consideration, was whether the seven appellants were members
of the unlawful assembly. In dealing with this question and
answering the same in favour of the prosecution the High
Court first set out at length the basic principles the trial
Judge was generally required to follow for appreciating the
evidence of eye witnesses and particularly of injured eye
witnesses after culling the same from the judgments of this
Court in Appabhai vs. State of Gujarat (AIR 1988 SC 696,
Bhoginbhai Hirjibhai vs. State of Gujarat (AIR 1983 SC 753),
Sohrab vs. State of M.P. (AIR 1972 SC 2020) and State of
U.P. vs. Anil Singh (AIR 1988 SC 1998). The High Court then
discussed the evidence of the eye witnesses threadbare in
the light of other evidence and, after detailing the
significant departures the trial Judge made from those
principles, concluded that he was not at all justified in
discarding their evidence.
To appreciate whether the above conclusion of the High
Court is sustainable or not we have carefully gone through
the entire evidence on record. Having done so we find that
the High Court was fully justified in reversing the
acquittal as the trial Judge’s approach in appreciation of
evidence was patently wrong and perverse. While on this
point we may also mention that some of the reasons given by
the trial Judge are of such flimsy character that they did
not merit any consideration in the appellate Court. Besides
the trial Judge was not at all justified in relying upon
minor discrepancies regarding details to discard the
evidence of the eye witnesses which the High Court noticed
and rightly ignored. However, to avoid prolixity we refrain
from detailing or discussing the perverse findings of the
trial Judge more particularly when we find the High Court
has dealt with them properly and exhaustively.
Now that we have found that the finding of the High
Court that the seven accused-appellants were members of an
unlawful assembly which caused injuries to three members of
the Patel community is unassailable we have to next
ascertain, keeping in view the respective contentions of the
learned counsel appearing in support of the appeals, whether
the finding of the High Court that the common object of
that assembly was in cause grievous hurt- and not to commit
murder is correct or not. In arriving at the above finding
the High Court observed:
“In our view looking at to the evidence
on record as it stands, it would be
difficult to infer that the common
object of the unlawful assembly was to
kill members of the Patel community. In
any set of circumstances benefit of
doubt is required to be given to the
accused because of different versions
given by different witnesses with regard
to the words uttered by the members of
the unlawful assembly. Further the fact
that the dharia blow is not given by a
share edge to the deceased and witness
Arvindbhai and also no fatal injury is
caused by dharia to witness Vinubhai
suggests that their common object was
not to kill members of Patel Community.
P.W. 7 Natwarlal Mangaldas has deposed
that members of the unlawful assembly
were uttering “beat the Patels on
Sight”. Same is the version given by
witness Dahyabhai. Same is the version
given by injured witness Vinubhjai
Keshavlal Patel. From this it cannot be
definitely stated that the common object
of this unlawful assembly was to kill
any members of the Patel community, but
it can be safely inferred that their
common object was to belabor and beat
members of the Patel community. In this
view of the matter, in our view the
respondents i.e. the accused Nos.
1,2,5,7,9,10 and 13 who are members of
unlawful assembly and identified as such
by the witnesses and whose presence at
the scene of offence is proved beyond
reasonable doubt would be liable to be
punished for the offence under Section
326 read with Sec. 149 of the Indian
Penal Code in view of injuries to
deceased Govindbhai.”
Since the nature, number and location of injuries
inflicted are some of the indicia to ascertain the common
object, and for that matter the offences committed. It will
be appropriated at this stage to detail the medical evidence
adduced during the trial. It appears from the evidence of
Dr. Vijay Ratilal Sheth (PW 13) who first examined
Govindbhai in the hospital that he had the following
injuries on his person:
(i) bleeding from nose and right ear.
(ii) contused lacerated would 5 ” ” 1″ : 1/2 over right
occipital region.
(iii) bruside B” ” 2″ over back of right thigh.
(iv) swelling over righ makills 3″ “3
(v) a bruise over right forearm and
(vi) fissure fracture of right parietal bone. and the
postmortem examination report of Dr. Mukesh Shah (PW 11)
shows that besides the above external injuries the deceased
had the following internal injuries:
(i) huge neamotoma over the scale over occioital and right
parietal region.
(ii) fracture of right parental and right temporal bones
with a second fracture of anterior canal fosse on rightside
just near the midline and.
(iii) diffused subdural and subdural and subrachnquid
nasemorrnage. with brain congested.
According to both the octars the injuries found on the
person of the deceased were possible by hard and blunt
substance.
So far as the injuries on the other two victims are
concerned Dr. Seth stated that Arvindbhat had the
following injuries on his person;
(i) contused lacerated would 4″ ” 1/2 ” over right frontal
region
(ii) contused lacerated wound 3″ ” 1/2 ” “1/2” over left
occipital region.
(iii) contused lacerated wound 3″ ” 1/4 ” ” 1/4 ” on base of
left thumb and
(iv) tenderness over the left forearm and the left knee.
The other injured Vinodchandra was examined by Dr.
Kirit Shukia and his examination revealed the
following injuries on his person:
(i) contused lacerated wound on forenead 5″ 1/2″ “1/2”
(ii) contused lacerated wound over accipital region “1/2 ” ”
1/2 ” ” 1/2
(iii) cupils of both eyes were equally reacting to light.
(iv) rounded bruises over caest.
(v) bruise on front of abdomen 6″ ” 1 ” and 6″ ” 1″.
(vi) tenderness over right forearm and wrist with a
fracture.
(vii) pointed wound over left leg 1″ 1 cm and
(viii) tenderness over left heel.
Considering the nature of injuries inflicted on the
above three persons and the discrepancy about the utterances
of the mob we are the complete agreement with the reasoning
of the High Court as quoted earlier and the conclusion drawn
therefrom that it could not be conclusively inferred that
the could object of the assembly was to commit the murder.
If really a mob of 50-60 persons wanted to commit. murder
nothing prevented them from inflicting severer injuries on
the persons of Govindbhai and the two victims. more so,when
some of them were armed with share cutting and dangerous
weapons. The fact that the accused-appellants Nos. 1 and 2
used blunt edges of the weapons and not their share edges
goes a long way to show that they did not also share a
common intention to will Govindbhai when they assaulted him.
We are, therefore unable to accent the contention of Mr.
Lalit that the members of the unlawful assembly shared the
common object or accused-appellants Nos. 1 and 2 shared the
common intention of committing the murder of Govindbhai.
Coming now to the contention of Mr. Ramaswamy that the
facts that most of the members of the assembly only carried
ordinary sticks. a few of which according to the prosecution
were recovered from the houses of the accused-appellants
clearly indicated that the common object of the unlawful
assembly was only to cause simple hurt we can only say that
even if we accept his contention, still the accused-
appellants would be liable for the offence of causing
grievous hurt as Section 149 IPC applies not only to offence
actually committed in pursuance of the common object but
also the offence that members of the unlawful assembly knew
was likely to be committed; and it would be impossible in
the facts of this case to hold that the members of the
unlawful assembly did not know that grievous hurt was likely
to be committed by an unlawful assembly, as large as the one
with which we are concerned here some of whom were armed
with dangerous weapons. Accordingly, even if the common
object be not placed as high as murder as contended by Mr.
Lalit, the conviction of the accused-appellant under Section
326 IPC simpliciter or 326 read with 149 IPC as the case may
be for the assaults on Govindbhai and Vinod has got to be
upheld.
That brings us to the question of sentence as raised by
Mr. Lalit it is undoubtedly true that considering the manner
in which the accused-appellants assaulted Govindbhai the
sentence of three years imposed by the High Court for that
offence errs on the side of leniency. But then we cannot be
oblivious of the fact that since the offences were committed
more then 14 years have elapsed and during this long period
the appellants have gone through the ordeal of a protected
criminal trial and of the two appeals. Having given our
anxious consideration to these competing claims we do not
feel inclined to enhance the sentence.
In the result both the appeals are dismissed. The
accused – appellants. who are on bail. shall now surrender
to their bail bonds to serve out the sentences imposed by
the High Court.