IMPORTANT POINT
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.

JUDGMENT

1. 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.

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

3. 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.

4. 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.

5. 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.

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

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

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

8. 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.”

6. 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 an