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2010 Supreme(Guj) 65
2010 (3) GCD 1898 (Guj) (DB)
Hon’ble Mr. Justice Jayant Patel &
Hon’ble Mr. Justice Rajesh H. Shukla
Karanbhai Nathabhai Bharwad & Ors.
Versus
State of Gujarat
Criminal Appeal No. 1296 of 2007—Decided on 03/03/2010
Appearance :
Mr. Aj. Shastri, for the Appellant No. 1 – 5.
Mr. Kl. Pandya, APP for the Opponent No. 1.
Point in Issue :
Whether prosecution has been able to prove offences with which accused are charged beyond reasonable doubt.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 366, 304, 148 and 147 — Abduction and culpable homicide not amounting to murder — Conviction — Appreciation of evidence — Sustainability — Finding of — As per prosecution all the accused appellants went to the house of complainant and in order to kidnap her dragged her — When complainant should for help one R and H and other neighbours came forward, therefore, they could not kidnap her — Their act, therefore, only amounts to attempt to kidnap and they are liable for offence under Section 366 read with 511 of the Code — In the incident accused A1 gave blow to deceased R and caused injury to which he succumbed — Other accused were not so involved there A1 was alone liable for his act — He was, therefore, liable for offence under Section 304 of the Code — There was no evidence of any intention on the part of the accused of rioting — The accused, therefore, can not be convicted for offence under Section 147 read with 148 of the Code — Court accordingly modified the judgment of trial Court and convicted and sentenced them.
Held :
The learned APP has not been able to show any evidence, which was led by the prosecution to prove the charge of Section 148 of IPC, nor is there any appropriate discussion by the learned Sessions Judge on the said aspects. Therefore, it appears to us that the learned Sessions Judge has committed error in convicting the accused for the offence under Section 147 read Section 148 of IPC, hence the judgement and order passed by the learned Sessions Judge could be said erroneous to that extent. [Para 12]
The conviction made and the sentence imposed by the learned Sessions Judge upon Accused No. 1, Karanbhai Nathabhai Bharwad under Section 304 of IPC is confirmed, but shall remain set aside for the other Accused Nos.2 to 5 for the offence under Section 304 of IPC. The conviction made and the sentence imposed upon all the Accused for the offence under Section 149 read with Section 366 is modified to the extent that there shall be conviction under Section 149 read with Section 366 read with Section 511 of IPC for the attempt to kidnap by unlawful assembly of all the accused and the sentence imposed would be of 5 (five) years R.I. The conviction made and the sentence imposed by the learned Sessions Judge for the offence under Section 147 read with Section 148 of IPC upon all the accused is quashed and set aside. [Para 17]
Law Laid Down :
Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections.
Jayant Patel, J.—The present appeal is directed against the judgement and order dated 15.10.2007 passed by the learned Sessions Judge in Sessions Case No. 36/2001, whereby the appellant-accused have been convicted for the offences under Section 147 read with Section 148 of IPC and the accused are also convicted for the offences under Section 366 read with Section 304 of IPC and the sentence is imposed of one year R.I., with the fine of Rs. 2,000/-, 2 (two) years R.I., with the fine of Rs. 3,000/-, 10 (ten) years R.I., with the fine of Rs. 5,000/-, and 10 (ten) years R.I., with the fine of Rs. 5,000/- for the respective offences and all punishments are ordered to be undergone concurrently.
2. It appears that as per the prosecution case on 17.2.2001, when the complainant Nimuben Gobarbhai Radadiya with her mother were present at their residence and at that time, the brother of the complainant and the father of the complainant were at a different place, at about 7 O’Clock, Accused No. 1 (A-1) together with about 7 persons came at the residence with the weapons and two persons of the said assembly, dragged the complainant into the street and the other persons were standing at that time and were shouting to take away the complainant. At that time, the complainant started shouting for the help and one Rajabhai Bhikhabhai Bharwad and Hematbhai Karsanbhai Balodiya and other neighbours came forward. The said Rajabhai sustained injuries of the blow given by Karanbhai Nathabhai Bharwad - A-1 and since the complainant was dragged, her clothes were torn off and the accused also sustained injuries. Thereafter, they ran away. The complaint was filed with Upleta Police Station vide C.R. No. 24/2001. The Police investigated into the complaint and the charge-sheet was also filed. It may also be recorded that the accused No. 1 also filed cross-complaint later on vide C.R. No. 25/2001, but the pertinent aspect is that in the said complaint there is no reference whatsoever to the injuries caused to Rajabhai. It also appears that thereafter, Rajabhai, who sustained serious injuries, had succumbed to the injuries and the additional charge of 302 of IPC was added in the complaint.
3. The prosecution in support of the charge at the time of trial led oral evidence and examined 26 witnesses, the details of which are mentioned by the learned Sessions Judge at paragraph 3 of the judgement. The prosecution also produced evidence of 39 documents, the details of which are also mentioned in the said paragraph by the learned Sessions Judge. The learned Sessions Judge thereafter recorded the further statements of the concerned accused, wherein the accused denied accusation made against them and in the further statements, it was stated that a false case is filed against them. The learned Sessions Judge heard the prosecution as well as the accused and found the case for conviction under Section 147-148-149-366-304 of IPC read with 235(2) of Cr.P.C. and on the aspects of punishment, the learned Sessions Judge further heard the accused and ultimately imposed the sentence as referred to herein above in earlier paragraph. It is under these circumstances, the present appeal before this Court.
4. We have heard Mr. Shastri, learned Counsel appearing for all the accused and we have also heard Mr. K.L. Pandya, learned APP for the State.
5. The complainant, who is an injured eye-witness and also victim, has been examined as PW-1 and her deposition has been recorded at Ex.14. She has categorically stated that A-1, who was having wooden handle of spade (Hatho) in his hand, had given blow to Rajabhai, who was also blind and Rajabhai had fallen down. The said version of the complainant is supported by the Inquest Panchnama of the dead-body of the deceased Rajabhai as well as the medical evidence. The injury on the head is supported by the evidence of Dr. Rajendrabhai Shantilal Pandya, PW-21 (Ex.59) and he has deposed that the cause of the death is due to internal injuries
