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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.

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    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 <PW 4> and Vinod <PW 9>, Bipinbhai (PW 5). Anil Kumar <PW 6> 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

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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

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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

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    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 <PW  13> 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

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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  <PW  14>  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

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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.