Full Judgment Text
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PETITIONER:
MERAMBHAI PUNJABHAI KHACHAR & ORS.
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT: 18/04/1996
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
VENKATASWAMI K. (J)
CITATION:
JT 1996 (5) 472 1996 SCALE (3)574
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
HANSARIA, J.
In these appeals we are concerned with the legality of
conviction of the 15 appellants by the Special Designated
Judge, Ahmedabad under various sections of law including
302/149, 307/149, 326/149 and section 3 of Terrorist and
Disruptive Activities (Prevention) Act (for short ‘TADA’).
The sentence awarded for the offence under section 302/149
is imprisonment for life and for section 3 TADA offence also
imprisonment for life; for the offence under section 307/149
imprisonment for 10 years and for section 326/149 offence
imprisonment for five years. Fines of varying amounts have
also been imposed for different offences.
2. The appeals being directed against the judgment of the
Designated Court which lie only to this Court, we have
applied our own mind to the material evidence on record
which were brought to our notice by the learned counsel for
the appellants and Shri Adhvaru who appeared for the State.
3. The principal argument in the case on behalf of the
appellants was advanced by Shri Lalit, learned senior
counsel appearing for appellants 1-4, 6 and 10-12.
Appellants 5 and 7-9 are represented by Shri Medh and
appellants 13-15 by senior advocate, Shri Mehta. These two
learned counsel adopted the submissions advanced by Shri
Lalit on the question of law. We, therefore, propose to
first advert to the legal contentions raised by Shri Lalit.
4. The main point urged by Shri Lalit was that on the
facts of the present case section 149 of the Code could not
have been pressed into service by the prosecution to find
the appellants’ guilty of having caused the murger of
deceased Rajabhai. The prosecution had, however, done so
because its case is that the appellants, who belong to
Darbar community, had gathered at the house of accused
Apabhai on the night of 14.3.1991 with the avowed object of
committing murder of complainant Fuljibhai and other Kolis
of village Sarangpur. This had been done because a few days
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earlier an altercation had taken place with Fuljibhai who
belongs to Koli community, when he was coming towards his
home in a bullock-cart at about 6-7 p.m. Appellant Babubhai,
who is a Darbar, happened to pass in a vehicle. It seems
that some difficulty was faced in over-taking the bullock-
cart. After the over-taking had taken place, the vehicle in
which Babubhai was travelling was stopped in front of the
bullock-cart. Babubhai got down and held Fuljibhai by his
collar and stated "You, Koli people, have become
unmanageable. You do not give said. We will see to it." The
prosecution says that to teach Kolis a lesson, the
appellants, along with some others, gathered in the
residence of appellant Apabhai on 14th March when a Dayra
(musical performance) was arranged. After this performance
was over around 2-3 a.m. of 15th, the appellants remained in
the house of Apabhai and when Fuljibhai and other members of
the complainant party crossed the house of Apabhai around 7
to 7.30 a.m. in the normal course of going to their fields,
they were attacked by the appellants. At first the
complainant party was dealt with sticks and rods.
Subsequently, 8-10 of the appellants took their stand on the
terrace of the first floor of Apabhai’s house and started
firing indiscriminately therefrom. Rajabhai sustained gun
shot injuries along with others. He succumbed whereas others
survived after some treatment was given in a hospital.
5. The aforesaid shows, according to the prosecution, that
the appellants, all of whom belong to Darbar community, were
animated by the common object of murdering complainant
Fuljibhai and other Kolis of village Sarangpur, in which the
house of Apabhai is situated. It was urged by Shri Adhyaru
that as the appellants had thered in Apabhia’s house to take
revenge on Kolis of rangpur because of what had happened a
few days earlier, the purpose of the appellants’ gathering
in the house of Apabhai was really not to participate in the
Davra, but to see that persons of Darbar community from
nearby villages gather to teach Kolis a lesson.
6. Shri Lalit’s submission, however, was that the
appellants had assembled in the house of Apabhai, not with
any sinister motive, but to enjoy the musical programme in
which even outside singer had been invited as admitted by
Fuljibhai who was examined as PW.2. It was also urged that
if the intention of the appellants would have been to cause
death either of Fuljibhai or other Kolis, there would have
been a blood bath inasmuch as according to the prosecution
8-10 appellants had fire arms with them and they had taken
their position on the terrace of the first floor of the
house of Apabhai, wherefrom they could have well fired to
death many Kolis who were on the road in front of the house.
The nature of the injuries sustained on the persons of
complaint party other than Rajabhai, would show that they
were not serious injuries - being lacerated wounds in the
main, except those found on the person of Jagdishbhai, who
had about 17 entry wounds.
7. We have found sufficient force in the contention of
Shri Lalit, first because, if the unlawful object would have
been to cause murder of Kolis of village Sarangpur, as has
been stated in the charge, Darbars of other villages would
not have perhaps made available themselves. Secondly and
more importantly, if the unlawful object would have been to
murder either the complainant or other Kilis, achievement of
the object would not have been at all difficult in view of
the fact that the appellants had fire arms with them and had
taken position on the terrace of the first floor wherefrom
it would have been easy to shoot down good number of Kolis
who were on the road and, what is more, quite unarmed. While
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taking this view, we have conceded that arranging of Dayra
in the house of Apabhai was a pretext for the Darbars to
assemble there, though the contrary view is also possible
inasmuch as if convening of Dayra would have been a ruse,
outside singer would not have been invited and the Davra
would not have been allowed to continue even upto 2-3 a.m.
of the next day to fatigue all by that time, not leaving
that much of energy as would have been expectedly required
to undergo next morning’s laborious work.
8. We would, therefore, hold that section 149 was not
available to the prosecution in the present case. Let the
next general submission of Shri Lalit relating to non-
applicability of TADA to the facts of the present case be
now dealt with. It was urged that the acts alleged against
the appellants did not attract any of the terrorists act
mentioned in section 3 of this Act. Shri Adhyaru contended
that as the action of the appellants had resulted in
striking terror among the Kolis, section 3 did apply.
9. Shri Lalit’s submission was that if terrorizing Kolis
would have been the object of the appellants they would have
gone to their village and attacked them, instead of awaiting
for some Kolis to pass through the road in front of the
house of Apabhai. Shri Adhyaru, however, drew our attention
to the evidence of the complainant Fuljibhai (PW2) who
stated that there was threatening even after the occurrence
in question which showed that Kolis were feeling insecured
and were seized with terror. But then, PW-2 admitted in
cross-examination that even ladies were going to the field
after the occurrence. If the ladies could come out of their
houses, may be to get engaged in their normal avocation of
life which in their case was grazing of cattle, it is
apparent that the Kolis had not felt so insecured as to
require taking recourse to TADA by the State.
10. We would, therefore, agree with Shri Lalit that sending
the appellants for trial under section 3 of TADA was not
warranted. Their conviction under section 3 has, therefore,
to fail.
11. Having held that section 149 had no operation insofar
as the murder of Rajabhai is concerned, we have to first
find out who could be held individually responsible for his
death. PWs 2,3,4,5 and 7 have consistently deposed that
Rajabhai was hit by the shot fired by the appellant No.1
Merambhai. There is nothing to disbelieve their evidence in
this regard. We would, therefore, sentence him alone under
section 302 and sustain the sentence awarded the same being
imprisonment for life and fine of Rs.10,000/-. Other
appellants are acquitted of the charge of section 302/149.
12. We have next to consider the conviction of the
appellants under section 307/149. Appellants 3.8.9.10 and 14
have been so convicted. As the applicability of 149 has not
ben accepted by us, we have to see which of the appellants
can be found guilty for their individual acts under section
307.
13. The trial court has convicted the appellants under this
section for attemption to murder two persons: (1) Sanjuben;
and (2) Jagdishbhai. It was contended for the appellants
that the injuries on the person of Sanjubhen would not show
that there was any attempt to murder her as the injury
sustained were these: (i) a contused lacerated wound 5 x 2
cm on the right side of the head; and (ii) swelling 7 x 5 cm
on the right side of chest. X-ray of the chest did not show
any fracture.
14. Despite these being the injuries, Shri Adhyaru urged
that as these had been caused by a fire arm, as deposed by
Sanjuben who was examined as PW 7, and as the pellet had
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struck the head, intention or knowledge to cause death was
present. We do not think if we would be justified to read
the aforesaid mens rea because though the injury was by a
pellet, it only seems to have grazed the had of Sanjubhen.
We, therefore hold that ingredients of section 307 are not
satisfied qua Sanjuben. Instead, the offence committed would
attract section 324. As the injuries in question had been
caused, as per the evidence of PW-7 herself, by appellant
No.9 Shivrajbhai (accused No.11), we convict him under
section 324 and award R.I. for one year and a fine of
Rs.1,000/-, in default, S.I. for one month, as sentence.
Appellant Nos. 3,8,10 and 14 stand acquitted under section
307/149 for wrong done to Sanjuben.
15. But insofar as Jagdishbhai is concerned, in his being
examined around 9.45 a.m. on the day of the occurrence, PW
17 had found multiple punctured wounds with about 17 entry
wounds in the middle part of the hand from the right side
elbow. The X-ray showed fracture of the right side ulna. An
attempt to murder, has therefore, to be read insofar as he
is concerned. From his evidence, who came to be examined as
PW 3, it is to be found that it was accused No.4
Bhupatibhai, who is appellant No.3, at whose hand he had
received the injury. We would, therefore, while acquitting
other appellants for the offence under section 307/149
convict Bhupatibhai under section 307. As to the sentence
for this offence, we are satisfied that imprisonment for
five years, instead of 10 years as awarded, would meet the
ends of justice, and we order accordingly.
16. We would now advert to the conviction of accused No. 15
Nathubhai, who is appellant No.13. Shri Mehta appearing for
him had a grievance about his conviction under various
sections of law inasmuch as he is one of the accused who had
neither been named in the FIR nor in any of the dying
declaration, nor in the statements made before the police as
late as 3.4.91 - occurrence having been taken place on
15.3.91. Though in the court he was named by PW 2, 3 and 4,
our attention has been invited by Shri Mehta to what PW2,
who was the informant, stated in his evidence, which was
that name of this appellant had not been given in his
complaint nor in the police statement. This witness further
stated that when his police statement was recorded on
3.4.91, he recollected that the name of this appellant was
left out from the complaint, but no steps were taken by him
to get his name recorded. As to PW 3, the submission was
that he was minor at the time of the occurrence. As regards
4 the contention was that he had admitted about his not
having named this appellant either in his police statement
or any other statement. This being the position, we
entertain doubt about his presence at the place of
occurrence on 15.3.1991 and order for his acquittal.
17. Insofar as offence under section 326 is concerned,
appellants 2,6 and 7 have been found guilty. This has been
done because of their individual acts. We would say the same
about the conviction of appellant No.8 under section 325 and
323. These convictions have not been challenged before us,
as really they could not have been to be reasonable. We
further find that appellants 1,3,4,5,10,11,12,14 and 15 have
been found guilty under sections 25 and 27 of the Arms Act.
It has been urged that the arms which appellant Nos. 4,11,14
and 15 had were licensed. As regards appellant No.4 a
statement had also been made that the pistol recovered from
him was not in working condition. We would, therefore, set
aside their conviction under these sections.
18. Conclusions
(1) Conviction of all the appellants under section 302/149
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IPC and section 3 TADA is set aside.
(2) Appellant No.1 stands convicted under section 302 and
he would undergo imprisonment of life for this offence and
pay fine of Rs.10,000/-, in default undergo S.I. for 2
years. Fine, if realized, shall be paid to the heirs of
deceased Rajabhai.
(3) Insofar as offence under 307 is concerned, only
appellant No.3 Bhupatibhai (accused No.4) stands convicted.
R.I. for 5 years is awarded as sentence to him for this
offence. Other appellants are acquitted so far as section
307 is concerned.
(4) Appellant No.13 Nathubhai (accused No.15) stands
acquitted altogether.
(5) Appellant No.9 Shivrajbhai (accused No.11) is convicted
under section 324, for which offence he would undergo R.I.
for 1 year and pay a fine of Rs.1,000/- in default undergo
S.I. for one month.
(6) Conviction of appellants 2,6 and 7 under section 326 is
confirmed; so is the sentence of R.I. for five years and
fine of Rs.2,000/-, in default S.I. for 3 months.
(7) Conviction of appellant No.8 Babubhai under sections
325 and 323 is confirmed; so too the sentence awarded - this
being R.I. for 3 years for offence under section 325 with
fine of Rs.1,000/- in default S.I. for 3 months; and R.I.
for six months for the 323 offence with a fine of Rs.5,00/-
in default S.I. for one month. These sentences are to run
concurrently.
(8) Conviction of appellant Nos.1,3,5,10 and 12 under
section 25 and 27 of Arms Act is confirmed; so is the
sentence as awarded - which is R.I. for one year and a fine
of Rs.1,000/- in default S.I. for 3 months. The order
relating to taking into custody of the fire arms alongwith
the live cartridges qua them is confirmed. These sentences
would run concurrently with sentence for other offences so
far as appellant Nos. 1 and 3 are concerned.
(9) Appellant Nos. 4,11,14 and 15 are acquitted for
offences under sections 25 and 27 Arms Act.
19. The appeals are allowed accordingly.
20. Before parting, we have felt constrained to observe
that though the learned counsel for the appellants had
rendered due and proper assistance while advancing oral
submissions, they failed to file a chart, as directed,
showing which appellant was which accused and has been
convicted under which section followed by what sentence.
(This was needed because out of 22 accused who faced the
trial, 6 have been acquitted and 1 died). This caused us
difficulty in preparing the judgment, which could have been
avoided by filing the chart.