1996 Supreme(SC) 809

1996(3) Supreme 603
SUPREME COURT OF INDIA
B.L. Hansaria and K. Venkataswami, JJ.
Merambhai Punjabhai Khachar & Ors. -Appellants
versus
State of Gujarat -Respondent
Criminal Appeal Nos. 988-989 of 1995
Decided on 18-4-1996
Counsel for the Parties :
For the Appellants : Shri Lalit, Shri Medh and Shri Mehta.

IMPORTANT POINT
Section 149, Indian Penal Code would not be available when the injuries sustained were not serious considering that the accused had fire arms with them and had taken position wherefrom it would have been easy to shoot down good number of persons who were unarmed.

Headnote:(i) Indian Penal Code, 1860-Section 302/149-TADA-Section 3-Conviction of 15 appellants under -Legality of-Prosecution case that appellants, all of whom belong to Darbar community, were animated by common object of murdering complainant and other kolis of village-Appellants having fire arms with them-Nature of injuries sustained on person of complainant party other than deceased, show that they were not serious injuries-Considering facts and circumstances, Section 149 held not applicable-Acts of appellants did not attract Section 3 TADA-Kolis had not felt insecured-PWs 2, 3, 4, 5 & 7 deposed that deceased was hit by shot fired by appellant No. 1-He is convicted under Section 302-Appellants acquitted of charge under Section 302/149 and under Section 3 TADA.

       Held : 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 Kolis, 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 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 Dayra would not have been allowed to continue even upto 2-3 a.m. of the next day to fatigue all that time, not leaving that much of energy as would have been expectedly required to undergo next morning s laborious work. (Para 7)

       Further held : Shri Lalit s submission was that if terrorising 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 Adhayaru, however, drew our attention to the evidence of the complainant Fuljibhai (PW 2) 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. (Para 9)

       Consequently held : 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. (Para 10)

       Then held : 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. (Para 11)

       (ii) Indian Penal Code, 1860-Section 307/149-Conviction under-Appeal-Section 149 held not applicable-Ingredients of Section 307 not satisfied qua S-Injuries caused by appellant 9-He is convicted under Section 324-Appellants 3, 8, 10 & 14 acquitted u/s. 307/149-Appellant 3 convicted under Section 307 for causing 17 entry wounds to victim J-Imprisonment of 5 years against him.

       (iii) Indian Penal Code, 1860-Sections 302, 323, 307-Conviction of accused No. 15-Appeal-He had neither been named in FIR nor in any of dying declaration, nor in statement made before police-His presence at place of occurrence being doubtful-Order for his acquittal. (Para 16)

       (iv) Indian Penal Code, 1860-Section 326-Conviction of appellants 2, 6 & 7 under-Not challenged-Conviction confirmed-Conviction of appellant No. 8 under Section 325 & 323 confirmed.(Para 17)

       (v) Arms Act-Sections 25 and 27-Convictions under-Arms which appellants 4, 11, 14 and 15 had were licensed-Pistol recovered from appellant No. 4 not in working condition-Their convictions set aside-Conviction of appellants 1, 3, 5, 10, 12 confirmed. (Paras 17 & 18)