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2018 Supreme(Guj) 934
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, BIREN VAISHNAV, JJ.
Vora Memubbhai @ Ghadiyali Abdul Karim - Appellant
Vs.
State of Gujarat - Respondent
Criminal Appeal No. 444 of 2013, 884 of 2013, 1268 of 2013, 1269 of 2013, 1377 of 2013
Decided On : 11-09-2018
Pratik B Barot, Adv., Sadik Ansari, Adv., Ashish M Dagli, Adv., E.E. Saiyed, Adv., M.M. Tirmizi, Adv., Mitesh Amin, Adv.
Headnote:
Indian Penal Code, 1860 - Sections 120B, 141, 143, 146, 147, 149, 302 and 323 - Criminal offence - Complainant who is also original first informant and eye witness to the case along with one and injured eye witness, altogether were present and sitting near a tea stall of one - It is further alleged that all accused persons armed with lethal weapons in their hands formed unlawful assembly and attacked from behind - Held, Keeping these factors in mind and findings, reasonings and conclusions drawn by the learned trial Judge believing testimonies of injured witness and eye witness in no uncertain terms inspire confidence about presence of each accused with weapons of assault hardly any dispute about place of offence injured receiving injuries by weapons like dagger which remained in the body of the deceased till postmortem was carried out, movement of both injured initially to Nagarpalika Hospital, Anand, thereafter to Hospital, which is few kilometers away, names of the accused are not in various exhibits, injuries so deposed on body of deceased as well as injured particularly of Dr. who carried out postmortem - False implication of the accused or even exaggeration so argued by learned counsel for the appellants cannot be believed - For the offence viz. unlawful assembly what is to be considered by the court is presence of a member of unlawful assembly and not of overt act and the design of the crime can be gathered from the manner in which assault is made along with weapons, and every member of unlawful assembly shared common object as discussed and evidence so emerge on record, Court find no infirmity in the judgment of conviction and sentence passed by the learned Additional Sessions Judge, in Sessions Case - Appeals dismissed. (Para 7)
Anant S. Dave, J.
At the outset, it is brought to our notice that Accused No.4 - Vora Ibrahim @Ghadiyali Abdulkarim died during the pendency of the appeal on 16.03.2016 and death certificate dated 06.04.2016 issued by the Birth & Death Registration authority of Vadodara Municipal Corporation is produced on record. Hence Criminal Appeal No.1268 of 2013 filed by Accused No.4 - Vora Ibrahim @Gadiyali Abdulkarim stands abated qua him.
1.1 Accused No.6 - Vora Yakubbhai @Ghadiyali Abdul Karim has filed Criminal Appeal No.1269 of 2013, Accused No.5 - Vora Arifbhai @Maharaj Umarbhai has filed Criminal Appeal No.444 of 2013, Accused No.2 - Vora Salimbhai @Vakil Abdul has filed Criminal Appeal No.884 of 2013, accused Nos.1 and 4 - Vora Mehbubbhai @Ghadiyali Abdul Karim and Vora Ibrahimbhai Ghadiyali Abdul Karim respectively have filed Criminal Appeal No.1268 of 2013, and accused No.3 - Vora Yunus @Barlakh Noormohammad has filed Criminal Appeal No.1377 of 2013 challenging the judgment and order dated 28.02.2013 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.47 of 2009 convicting all the accused persons under Sections 141, 146, 148, 149, 302 and 323 of the Indian Penal Code and sentencing them to undergo 6 months RI with fine of Rs. 500/-, in default to undergo 15 days SI for the offence punishable under Section 141 read with Section 143 of the IPC; 2 years RI with fine of Rs. 1,000/-, in default to undergo 1 month SI for the offence under Section 146 read with Section 147 of the IPC; 3 years RI with fine of Rs. 1,000/-, in default to undergo 1 month SI for the offence under Section 148 read with Section 149 of the IPC; 1 year RI with fine of Rs. 500/-, in default to undergo 1 month SI for the offence punishable under Section 323 of the IPC; and imprisonment for life with fine of Rs. 2,000/-, in default to undergo 3 months SI for the offence punishable under Section 302 read with Section 149 of the IPC, and ordered to run all the sentences concurrently.
1.2 All the accused are acquitted for the offence punishable under Section 120B of the IPC since the prosecution failed to prove its case beyond reasonable doubt qua the charge framed under Section 120B of the IPC.
2. For the purpose of deciding all these appeals, we have gone through entire evidence direct as well as oral in the backdrop of the case of the prosecution, which is as under:
2.1 As per the case of the prosecution, on 11.10.2009 at around 6:30 pm when the complainant Idrishbhai Ahmedmiya Shaikh PW-4, who is also original first informant and eye witness to the case along with one Mehbubbeg Shaikh [deceased], brother Nasrubeg PW-23 and injured eye witness - Suman Chauhan, Riyazbhai Rasulbhai Shaikh, altogether were present and sitting near a tea stall of one Rafiqbhai. It is further alleged that between 8:00 to 8:15 pm, all accused persons armed with lethal weapons in their hands formed unlawful assembly and attacked Mehbubbeg and Nasrubeg from behind. That original accused No.1 inflicted a knife blow on the lower part of the neck of Mehbubbeg@Chinabhai, Accused No.2 inflicted two blows of sword on Chinabhai, accused No.5 inflicted a knife blow on the stomach of injured Nasrubeg, accused No.3 inflicted a knife blow on both the hands of injured Nasrubeg and accused No.6 inflicted a blow of iron pipe on the injured witness Nasrubeg. That upon alarm being raised by witnesses, all the accused persons left the place and ran away in the same direction from which they had arrived. Injured Chinabhai@Mehbubbeg was taken to Nagarpalika Hospital at Anand and the Medical Officer In-charge Dr. Arvind Dalwadi PW-1 referred the patient to Shri Krishna Hospital, Karamsad for better treatment and injured - Chinabhai @Mehbubbeg succumbed to injuries. So far as injured Nasrubeg is concerned, after receiving treatment, he was discharged from the hospital. At the e
