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HIGH COURT OF GUJARAT
C. K. BUCH, J.
LILABHAI KHODABHAI BHARWAD
Versus
STATE OF GUJARAT
Criminal Appeal 891 Of 1993
Decided On : DECEMBER 28, 2007
Bombay Police Act - Section 135[1] - Indian Penal Code, 1860 - Sections 34, 143, 147, 148, 149, 307, 323, 324, 332, 353, 426, 504 and 506(2) - Criminal Procedure code - Section 374[2] and 386 - Challenging legality and validity of order - Legality and validity of order of conviction and sentence has been assailed on various grounds mentioned in memo of appeal heard counsel for appellants and APP in detail - Both of them have taken me through relevant part of judgment under challenge as oral and documentary evidence led during course of trial including opinion evidence of doctors examined by prosecution - Appellants informed Court that in incident in question S.R.P. Constable had opened fire from his 303 service rifle as seven persons from side of accused had sustained injuries - Held, Court can observe that actually they have been wrongly implicated in crime and they were victim of the assault - It is obviously open for injured victims either to claim compensation from the government or as the wrong is mainly committed by S.R.P. Constable it will confer right to injured victims to prosecute complainant his uncle Constable for putting a tailor-made false case to save their skin with help of police officers of police station if otherwise legally entitled - This would need independent proceedings and this part of argument made by cannot be acceptable - Order of conviction and sentence passed by Additional Sessions Judge in Sessions Case is quashed and set aside - Appellants are acquitted from all charges leveled against them - All accused shall be released if they are not required in any other offence - Amount of fine paid if any be refunded to respective appellant-accused on proper identification - As there is no acquittal appeal by State against persons who were acquitted by trial Judge - Court is not supposed to make any comment on operative part of judgment under challenge - It is relevant to note that no good and logical reasons are coming forth from judgment under challenge as to why and in accused persons have been separated in two groups though their physical presence at spot was natural and nine of them were injured - 0n same ground present appellants were also required to be acquitted - In short appeal is allowed - Bail bonds executed by appellants accused stand discharged - Order and direction accordingly - Appeal allowed
( 1 ) THIS appeal is filed under Section 374[2] read with Section 386 of the Code of criminal Procedure, challenging the legality and validity of the order of conviction and sentence dated 7th August, 1993 passed by the learned Additional Sessions Judge, ahmadabad[rural] on conclusion of the trial of Sessions Case No. 101/88. Total 9 accused persons were tried for charge of offences punishable under Sections 143, 147, 148. 149, 34, 323, 324, 332, 353, 506[2], 426, 504 and 307 of I. P. C. and also under Section 135[1] of the Bombay Police act. Pending the trial, the original accused no. 2 Bhura Bhikha died his natural death and therefore, the trial against the said accused was treated as abated vide order dated 26th June, 1992 [appellant no. 2 Jivan bhoja Bharwad died pending the appeal, so the appeal by the accused Jivan Bhoja shall have to be treated abated]. Learned trial judge, by above judgment and order decided to acquit the accused nos. 6 to 9 from all charges levelled against them. The appellants, that is, the original accused nos. 1,3, 4 and 5 are the convicts, who have been held guilty for all the charges levelled against them except for the charge of offence punishable under Section 504 of i. P. C. and Section 135[1] of the Bombay police Act. All the accused persons have been sentenced to undergo rigorous imprisonment for 3 years for the charge of offences punishable under Sections 143, 147, 148 and 149 read with Section 307 of i. P. C. , and to pay fine of Rs. 500/- each. In default of payment of fine, they have been sentenced to undergo simple imprisonment for 3 months. For the charge of offences punishable under Sections 143, 147, 148 read with Section 149 of I. P. C. , they have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 800/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 days. For the charge of offences punishable under Sections 147, 148, 149 read with Section 332 of I. P. C. , they have also been sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs. 200/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under Section 149 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment for 15 days. For the charge of offences punishable under sections 147, 148, 149 read with Section 323 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. For the charge of offences punishable under sections 147, 148 and 149 read with section 324 of I. P. C. , the above accused have been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to simple imprisonment of 15 days. For the charge of offences punishable under Sections 147 and 149 read with Section 506[2] of I. P. C. they have also been sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days. Similarly, they have been sentenced to undergo rigorous imprisonment for 3 months and to pay fine of Rs. 100/- each and in default of payment of fine, they have been sentenced to undergo simple imprisonment for 15 days for the charge of offences punishable under Sections, 147, 148 and 149 read with Section 426 of I. P. C. The learned trial Judge has not awarded separate sentence for charge of offence punishable under Section 353 of I. P. C. All the sentences are ordered to run concurrently with benefit under
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