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Tuesday, August 30, 2016

section 149 of the IPC, once membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.”= The medical evidence on record through the testimony of PW10 Dr. Setalwad shows that injuries 2 to 5 and 7 though inflicted by sharp cutting weapons were deep upto the skin and were classified as injuries of general type. Injury No.1 according to the prosecution was attributed to accused No.1 who died during the pendency of the appeal. Injuries 6 to 8 are bruises and swellings which could be attributed to sticks. Though the injured Gelabhai was about 80 years of age on the date of incident, he did not suffer any serious or permanent injury and is still alive. At this length of time when 9 years have gone by, in our considered view, ends of justice would be met if the amount of compensation is increased while restoring the sentence imposed by the Trial Court. The Trial Court had directed payment of compensation to the tune of Rs.35,000/- each to be paid by original accused Nos.1 and 7. The record indicates that amount of Rs. 70,000/- has accordingly been deposited with the Trial Court. In the circumstances we deem it appropriate to maintain the order of conviction and sentence as imposed by the Trial Court subject to the modification that each of the appellants shall pay Rs.55,000/- by way of compensation to the injured Gelabhai. Such compensation shall be deposited by each of the appellant with the Trial Court within two months from today and the deposited amount shall be made over to the complainant. The amount of Rs.70,000/- deposited by original accused Nos.1 and 7 shall also be made over to the complainant. Original accused No.7 who had already deposited Rs.35,000/- shall now deposit the balance sum of Rs.20,000/-. In case of any failure to deposit the compensation as directed above, the appellants shall have to undergo sentence in default for a further period of one year.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NOs.783-784 of 2016




Bharwad Navghanbhaj Jakshibhai & Ors.              …….   Appellants


                             Versus


State of Gujarat                                        .……. Respondent


                               J U D G M E N T



Uday Umesh Lalit, J.



These appeals by special leave at the instance of original  accused    Nos.2
to 14, seek to challenge the common  judgment  and  order  dated  10.03.2016
passed by the  High  Court  of  Gujarat  at  Ahmedabad  in  Criminal  Appeal
Nos.947/2011 and 969 of 2011.



Fourteen accused including appellants 1 to 13 were convicted  and  sentenced
by Sessions Judge, Patan in Sessions Case No.27 of 2008 as under:-





| 1  to 14 |u/s 147, 148 IPC   | Fine of Rs.1000/-, i/d no  |
|          |                   |separate imprisonment.      |
| 1 and 7  |u/s 326 r/w 149 IPC|R.I. of 2 years +           |
|          |                   |Rs.35,000/-(towards         |
|          |                   |compensation)               |
|2 to 6 and|u/s 326 r/w 149 IPC|R.I. of 2 years+ Rs.500/-,  |
|8 to 14   |                   |i/d 10 days.                |
| 1 to 14  |u/s 324 and 149 IPC| Fine of Rs.2000/-, i/d 15  |
|          |                   |days                        |
| 1 to 14  |u/s 325 r/w 149 IPC| R.I. of 2 years            |
| 1 to 14  |504, 506(2) r/w 149|No separate sentence is     |
|          |IPC                |passed as the accused are   |
|          |                   |already convicted under     |
|          |                   |Section 326 IPC             |




All the convicted accused, being aggrieved preferred Criminal Appeal  No.947
of 2011 while the State preferred Criminal Appeal  No.969  of  2011  seeking
enhancement of the sentence imposed by the Trial Court. During the  pendency
of the appeal original accused No.1 having passed away,  the  appeals  stood
abated qua him.



According to the prosecution 2 to 3 days prior to  10.10.2007,  the  tractor
of one Ganeshbhai i.e. son of the complainant had dashed against  the  motor
cycle of one Bhikhabhai Ratnabhai.  Nursing a grudge on account thereof,  on
10.10.2007 at about 1230 hrs. all the accused forming an  unlawful  assembly
went to the place of said Ganeshbhai with weapons like tamancha, dharia  and
sticks. Accused No.1 was armed with a tamancha, accused No.7 was armed  with
dharia, and others were armed with sticks.  Since Ganeshbhai  did  not  open
the house, the accused proceeded to the house of Gelabhai. All  the  accused
are stated to have attacked complainant Gelabhai who  was  sleeping  in  the
courtyard and caused serious injuries to him.



Gelabhai was taken to Civil Hospital, Mehsana where he  remained  an  indoor
patient for more than 40 days and according to Dr. Setalwad who treated  him
and was later examined as PW10 in the trial,  said  Gelabhai  had  sustained
following injuries:-



“1. CLW of about 5cm x 2cm x bone deep in size on the  rt.  Leg  middle  one
third, anterior aspect compound fracture.

2.  Incised wound of about 3cm x 1cm x  skin  deep  inside  on  the  forearm
middle one third anterior aspect oblique in direction.

 3.  Incised wound of about 4cm x 1cm x skin deep in size on the ant  aspect
of the middle one third of it leg, upper part.

4.  Incised wound of about 2cm x ½ cm X skin deep in size on   the left  leg
below knee outer aspect.

Incised wound of about 1cm x ½ cm x skin deep in size  on  the  upper  1/3rd
left leg, anterior aspect.

Abrasion & contusion 10cm x 6cm in size, irregular in shape with D.T.S  over
the left forearm lower one third.

Incised wound of about 1cm x ½ cm x skin  deep  in  size,  on  the  Ft.  arm
lateral aspect.

D.T.S and fracture deformity Rt. Arm, middle part on which Redish  contusion
of about 8cm x 2.5cm in size  oblique  in  direction  on  the  anterolateral
aspect.


      1. Fracture of shaft hummers (right)

      2. Fracture on Left Tibia and Fibula

      3. Fracture of Radius and Ulna.”





Statement of Gelabhai recorded by  PW  13  Sub-Inspector  Nathabhai  led  to
registration of Crime No.164 of 2007 against all  the  accused.   After  due
investigation,  charge-sheet  was  filed  against  all  the  accused   under
Sections 307, 325, 324, 504, 506(2), 147, 148, 148(9) of the IPC  and  under
Section 30(A) of the Arms Act.  During trial, the  prosecution  examined  15
witnesses and also produced documentary evidence. The accused denied  having
committed any offence and submitted that they  were  falsely  implicated  in
the case because of  old  rivalry.  At  the  conclusion  of  the  trial,  by
judgment and order dated 08.06.2011 the Trial Court  acquitted  the  accused
of charges under Section 307 IPC and Section 30(A) of the Arms  Act.  Though
there was no charge under Section 326 of the IPC,  according  to  the  Trial
Court the material on record  was  sufficient  to  prove  the  case  of  the
prosecution as against the accused under Section 326 read with  Section  149
of the IPC. The Trial Court thus convicted and sentenced all the accused  as
stated hereinabove.



While dealing with the challenge by  the  appellants  to  the  judgment  and
order passed by the Trial Court, the High Court  affirmed  their  conviction
and dismissed Criminal Appeal No.947 of  2011.   As  regards  the  plea  for
enhancement of sentence  by  the  State,  the  High  Court  found  that  the
sentence of 2 years as imposed by the Trial  Court  for  the  offence  under
Section 326 of the IPC was not commensurate with the gravity of the  offence
and as such while partly allowing the appeal  preferred  by  the  State,  it
enhanced the sentence from 2 years to 5 years rigorous imprisonment for  the
offence under Section 326 read with Section 149 of the IPC.



These appeals by  appellants  seek  to  challenge  the  correctness  of  the
decision of the High Court.  Mr.  Huzefa  Ahmadi,  learned  Senior  Advocate
appearing in support of the appeals submitted inter alia that  though  there
were 8 injuries on the body of the  injured,  14  persons  were  arrayed  as
accused suggesting clear case of over-implication, that the  injured  person
had not suffered any serious injuries  and  that  the  High  Court  was  not
justified in enhancing the sentence. It was further submitted that  at  this
length of time the ends of justice would be met if the actual  sentence  was
reduced while enhancing the amount of fine as imposed by the  Courts  below.
Ms.  Hemantika  Wahi,  learned  Advocate  appearing  for   the   State   and
Mr. Purvish Jitendra Malkan, learned Advocate appearing for the  complainant
supported  the  judgments  of  conviction  by  the  Courts  below  but  were
agreeable to the submission that the actual imprisonment  could  be  reduced
while enhancing the amount of fine.



We have gone  through  the  record  and  considered  rival  submissions.  As
regards the findings of conviction by the  Courts  below,  we  do  not  find
anything on record warranting any different view.   The  conclusion  arrived
at by the High Court rightly sums up the matter in following words:



“So far as the submission on behalf of the  original  accused  that  only  8
injuries were found and as per the case of  prosecution  13  persons  caused
the injuries and, therefore, there is exaggeration  and/or  over-implication
is concerned, it is required to be noted that all the accused  were  members
of unlawful assembly  with  a  common  object.  All  of  them  attacked  the
original complainant-injured eye witness at his place.   All  of  them  were
charged for the offence under Section 149 of the IPC also and  they  are  in
fact convicted with the aid of Section 149 of the IPC.   As  per  catena  of
decisions of the Hon’ble Supreme Court as well as  this  Court,  to  attract
the provisions of section 149 of the IPC, once  membership  of  an  unlawful
assembly  is  established,  it  is  not  incumbent  on  the  prosecution  to
establish whether any specific overt act has been assigned to  any  accused.
In other words, mere membership of the unlawful assembly is  sufficient  and
every member of an unlawful assembly is  vicariously  liable  for  the  acts
done by others either in  the  prosecution  of  the  common  object  of  the
unlawful assembly or such which the members of the  unlawful  assembly  knew
were likely to be committed.”



The medical evidence on record  through  the  testimony  of  PW10        Dr.
Setalwad shows that injuries 2 to 5 and 7 though inflicted by sharp  cutting
weapons were deep upto the skin and were classified as injuries  of  general
type.  Injury No.1 according to the prosecution was  attributed  to  accused
No.1 who died during the pendency of  the  appeal.   Injuries  6  to  8  are
bruises and swellings which  could  be  attributed  to  sticks.  Though  the
injured Gelabhai was about 80 years of age on the date of incident,  he  did
not suffer any serious or permanent injury and  is  still  alive.   At  this
length of time when 9 years have gone by, in our considered  view,  ends  of
justice would be met if  the  amount  of  compensation  is  increased  while
restoring the sentence imposed by the  Trial  Court.  The  Trial  Court  had
directed payment of compensation to the tune of Rs.35,000/- each to be  paid
by original accused Nos.1 and 7. The record indicates  that  amount  of  Rs.
70,000/- has accordingly been deposited with the Trial Court.



In the circumstances we  deem  it  appropriate  to  maintain  the  order  of
conviction and sentence as  imposed  by  the  Trial  Court  subject  to  the
modification that each of the appellants shall pay  Rs.55,000/-  by  way  of
compensation to the injured Gelabhai. Such compensation shall  be  deposited
by each of the appellant with the Trial Court within two months  from  today
and the deposited amount shall be made over to the complainant.  The  amount
of Rs.70,000/- deposited by original accused Nos.1 and 7 shall also be  made
over to the complainant. Original accused No.7  who  had  already  deposited
Rs.35,000/- shall now deposit the balance sum of Rs.20,000/-.   In  case  of
any failure to deposit the compensation as directed  above,  the  appellants
shall have to undergo sentence in default for a further period of one year.



The appellants who were exempted from surrendering as a result of the  order
passed by the learned  Chamber  Judge  of  this  Court  shall  surrender  to
custody within one month from the date of this order and shall  undergo  the
sentence as imposed by the  Trial  Court  subject  to  the  modification  in
payment of compensation as  stated  above.  In  case  of  any  default,  the
appellants shall undergo further sentence of one year.



The appeals are thus allowed and the order of sentence passed  by  the  High
Court stands modified to the extent as stated above.



                                                             ..………………………..J.
                                (Dipak Misra)


                                                                …………………………J.
                             (Uday Umesh Lalit)

New Delhi
August 29, 2016

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