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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.